Pilot & Silver
[2022] FedCFamC1A 191
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Pilot & Silver [2022] FedCFamC1A 191
Appeal from: Silver & Pilot (No 2) [2022] FedCFamC1F 538 Appeal number: NAA 172 of 2022 File number: MLC 10303 of 2018 Judgment of: AUSTIN, MCGUIRE & CAMPTON JJ Date of judgment: 21 November 2022 Catchwords: FAMILY LAW – APPEAL – Parenting – Unacceptable risk – Where the mother appeals from interim parenting orders providing for the children to live with the father and spend professionally supervised time with her – Where the appellant pleads 15 grounds of appeal, many of which overlapped and did not elucidate the appellant’s complaint – Where the primary judge correctly applied principle as to the identification and assessment of unacceptable risk – Where the Court Child Expert was cross-examined at the interim hearing – Reliance upon tested evidence of the Court Child Expert – Weight challenges – Findings open on the evidence – Where the reasons make it plain how and why orders were made – Decision of the primary judge not unreasonable or unjust – Where the appeal lacks merit – Appeal dismissed – Costs ordered in a fixed sum. Legislation: Family Law Act 1975 (Cth) ss 62G, 69ZW, 117 Cases cited: Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36
Goode and Goode (2006) FLC 93-286; [2006] FamCA 1346
Hedlund & Hedlund (2021) 64 Fam LR 458; [2021] FedCFamC1A 84
Isles & Nelissen (2022) 65 Fam LR 288; [2022] FedCFamC1A 97
Lovell v Lovell (1950) 81 CLR 513; [1950] HCA 52
SCVG & KLD (2014) FLC 93-582; [2014] FamCAFC 42
SS v AH [2010] FamCAFC 13
Number of paragraphs: 64 Date of hearing: 3 November 2022 Place: Heard in Melbourne, delivered in Newcastle Counsel for the Appellant: Mr Levine Solicitor for the Appellant: Matrix Legal Counsel for the Respondent: Dr Smith Solicitor for the Respondent: Heinz Law Counsel for the Independent Children’s Lawyer: Mr Eidelson Solicitor for the Independent Children’s Lawyer: Sarah Lia ORDERS
NAA 172 of 2022
MLC 10303 of 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS PILOT
Appellant
AND: MR SILVER
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
AUSTIN, MCGUIRE & CAMPTON JJ
DATE OF ORDER:
21 November 2022
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.Within 28 days of the date of these orders, the appellant shall pay the respondent’s costs of the appeal fixed in the sum of $11,217 and the Independent Children’s Lawyer’s costs fixed in the sum of $3,729.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pilot & Silver has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN, MCGUIRE & CAMPTON JJ:
Introduction
By an Amended Notice of Appeal filed on 12 October 2022, the mother appeals from interim orders regulating the parenting of five-year-old twin children made on 22 July 2022 by a judge of the Federal Circuit and Family Court of Australia (Division 1). The orders subject to appeal discharged prior orders and provided, pending further order, for the children to live with the father and spend time with the mother under professional supervision for not less than two hours per fortnight.
The parenting dispute is listed for trial over five days commencing on 15 May 2023.
For the reasons that follow, the appeal is dismissed. The mother shall pay the father’s costs of the appeal fixed in the sum of $11,217 and the Independent Children’s Lawyer’s (“the ICL”) costs of the appeal fixed in the sum of $3,729.
Background
The litigation between the parents was commenced by the father in the Federal Circuit Court of Australia (as the Court was then known) on 5 September 2018 when the children were 18 months old. As recorded by the primary judge, during the course of those proceedings the mother made extensive and significant allegations that the father had occasioned serious family violence and abuse towards herself and the children. It was her case that the children were exposed to an unacceptable risk of harm in the father’s care. Notwithstanding those allegations, final consent orders were made on 19 October 2020 (“the final orders”) providing for the parents to have equal shared parental responsibility for the children, for the children to live with the mother and to spend substantial and significant time with the father, expanding to each alternate weekend from after school on Thursday to before school on Monday, during school holidays and on special days.
Proceedings were recommenced by the father on 30 May 2022. He sought orders for sole parental responsibility of the children and that the children live with him. On an interim basis he sought that the mother’s time with the children be professionally supervised. The primary judge recorded that the father’s Initiating Application was made against a background of the mother retaining the children in early May 2022, the parenting arrangements regulated by the final orders thereafter breaking down, and the mother replicating a pattern of behaviour of making allegations to multiple agencies as to the father being physically and potentially sexually abusive towards the children (at [15]). The mother filed a Response resisting the father’s application. She sought orders that she have sole parental responsibility for the children and that, at least in the interim, the father’s time with the children be professionally supervised. By way of their applications, both parents sought significant variations to the final orders on an interim basis.
On 30 May 2022, orders were made pursuant to s 69ZW of the Family Law Act 1975 (Cth) (“the Act”) requesting information from the Department of Families, Fairness and Housing (“the Department”).
On 8 June 2022 the matter came before another judge of the Federal Circuit and Family Court of Australia (Division 1). A Child Protection co-located worker attended on that day and gave the Court information as to the involvement of the family with Child Protection (as recorded by the primary judge at [22]). The Court was informed that Child Protection were undertaking an investigation into the family and held current concerns as to the mother’s mental health and as to the mother putting the emotional and psychological wellbeing of the children at risk. The Court was further informed that while the Department did not have concerns for the children in the father’s care, they did have concerns about a developing pattern of the mother making seemingly “unsubstantiated or baseless allegations of harm to the children in the father’s care” (at [22]). The Court on that date made some 36 orders, including:
(a)Listing the matter for an interim hearing;
(b)Suspending the final orders as to the children’s living arrangements and making interim orders for the children to spend time with the mother from Monday after kindergarten to Wednesday before kindergarten, on condition that such time occurred at the maternal grandparent’s residence, and for the children to spend time with the father for the balance of the week;
(c)Requiring the mother to file and serve material relied upon for the purpose of the hearing, including a current report from her psychologist and the children’s therapist and for the father to file and serve his material in response;
(d)Pursuant to s 62G of the Act for a Court Child Expert to provide a Child Impact Report; and
(e)Issuing a recovery order to lie in the Court Registry to be activated in the event of any non-compliance by the mother with the orders as to the children’s time to be spent with the father.
The orders of 8 June 2022 were not the subject of appeal.
A number of subpoenas were subsequently issued, including to the Victoria Police (which encompasses the Sexual Offences and Child-abuse Investigation Team (“SOCIT”)). Material produced on subpoena was tendered into evidence before the primary judge. That material recorded that SOCIT had interviewed the children, who made no disclosures that required further action. It also recorded that the maternal grandmother had taken one child to City N Police Station on 9 May 2022, that the mother had some interaction with City KK SOCIT in May 2022, and that she had taken the children to LL Town Police Station on 16 May 2022. The police interviewed the children at their kindergarten on 23 May 2022.
On 7 July 2022 the Child Impact Report was released to the parents after the Court Child Expert interviewed the children individually on 27 June 2022. That report made no recommendations as to the children’s living arrangements, save to say that the orders then in place (being those made on 8 June 2022) were sufficient to maintain a relationship between the mother and the children and that it may be premature to make any orders as to parental responsibility. The reasons record the expert’s concern that the children have been subjected to multiple investigations, multiple interviews and multiple disruptions:
36.Both of the children were able to identify positives about their parents which included physical affection. It seemed to [the Court Child Expert] at least that they did not have any significant complaints about either parent. In relation to the mother’s allegations, [the Court Child Expert] writes:
If the allegations are proven to be unfounded, there is significant risk to the children. Each investigation by the Police has been unable to conclusively confirm risk to the children. The children have been exposed to many services including interviewing by SOCIT and Child Protection on multiple occasions which may result in developing a narrative of harm perpetrated against them by [the father]. They have had a disruption to their school attendance due to entering the family violence secure housing for a period of several months, which may be detrimental to their academic engagement. There has been a disruption to spend time with [the father], with no known explanation provided to them as to why this has occurred and without understanding of this there is a possibility that the children’s sense of safety with [the father] may feel compromised.
Material was produced by the Department to the Court in response to the s 69ZW order on
14 July 2022. The primary judge’s reasons recorded the contents of the Department’s response at [44]–[50]. This included Child Protection finding no evidence of family violence being perpetrated by the father on the mother or the children, or any evidence that the children had been sexually or physically abused by him. The reasons then record:
51.The Department report sets out that Child Protection has significant concerns about the mother and the lack of insight that she shows in relation to the impact of exposing the children to conversations about adult conflict and requiring the children to repeat conversations. Child Protection determined that the children were at risk of significant emotional or psychological harm in the care of the mother and recommended that the children live with their father and spend supervised time with their mother at a contact centre.
The primary judge heard the parents’ interim dispute on 21 July 2022. At the hearing, each of the parents and the ICL defined the parameters of the parenting dispute around the allegations of sexual abuse, family violence, and emotional and psychological harm. It was both the mother and the father’s case before the primary judge that the other presented an unacceptable risk of harm to the children, and that such risk could only be mitigated if the other’s time with the children was limited and professionally supervised. The ICL sought orders in similar terms to those sought by the father, contending that the risk posed to the children by the mother was that identified by the father.
Prior to the hearing the Court Child Expert had been supplied the s 69ZW material produced by the Department. During his cross-examination, he was provided with an overview of the material produced on subpoena by Victoria Police, including as to the mother and children’s contact with SOCIT. With the benefit of that information, the Court Child Expert gave oral evidence at the hearing, being cross-examined by each of the father, mother and the ICL.
The primary judge recorded the shift in the Court Child Expert’s recommendations in his oral evidence after considering the further evidence as follows:
41. [The Court Child Expert] adopted his report but said that having had the opportunity to read the [Department’s] response, it was now his view that the time between the mother and the children should be professionally supervised. He also said that he felt it would be better and more beneficial for the children for there to be a break between the current arrangements for time with their mother and moving to supervised time. He said that a month or two of no time would give the children the opportunity to settle in the father’s care and adjust to a new and significantly different regime of limited supervised time with their mother.
42.It was the view of [the Court Child Expert] that the mother’s time with the children did need to be professionally supervised to ensure that the mother’s conversations and interactions with the children were adequately monitored. He was troubled by the observations made by the Department that the mother and her mother have apparently exposed the children to inappropriate conversations. He was also troubled that the mother appeared to have little insight into the damage to the children of being so exposed. [The Court Child Expert] was also troubled by the mother and her mother appearing to repeatedly question the children and encourage them to make statements against their father.
The primary judge delivered judgment and made orders on the following day.
The appeal
The Notice of Appeal filed by the mother on 10 August 2022 prosecuted 17 grounds of appeal. By way of the Amended Notice of Appeal filed on 12 October 2022, Grounds 1 and 3 were abandoned. Grounds 2, 8, 15 and 16 were abandoned during the course of the appeal hearing.
It was difficult to distil the gravamen of some of the grounds of appeal as prosecuted. Some grounds replicated other grounds either in whole or in part. Some grounds were entirely unsupported in the mother’s Summary of Argument, making it challenging to understand the particulars of the complaint raised. Some of the grounds that were constructed as identifying errors of principle devolved during the course of the hearing of the appeal to grounds as to weight.
Grounds 4, 6, 10, 12(b) and 17 – errors of principle as to evaluation of risk
Each of these grounds overlapped. The mother grouped them for the purposes of oral submissions, contending that they each advanced a complaint that the primary judge erred in the treatment of the asserted risk of harm to the children.
In underscoring these grounds, the mother identified a series of authorities of the Full Court as to the approach to be taken in undertaking an assessment of risk posed to children, including:
2. … In [Banks & Banks (2015) FLC 93-637] the Full Court of the Family Court said at [55] “We accept that significant weight should be given to the benefit to the child of having a meaningful relationship with his father (as well as with his mother). We also accept that it may be difficult, if not impossible, to establish and maintain such a relationship without there being regular physical contact”.
…
13.… In [Isles & Nelissen (2022) 65 Fam LR 288] the Full Court of the Family Court said at [12] “… qualitative analysis of the evidence must be directed not just to the existence of the risk of harm but also the magnitude of the possible harm …” and it is sufficient if the risk of harm is possible as distinct from probable or certain… [In] SS v AH [2010] FamCAFC 13, the majority of the Full Court (Boland and Thackray JJ) said at [100]. ... Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected…
(Mother’s Summary of Argument filed 12 October 2022)
The mother accepted during the hearing of the appeal that the primary judge’s statement as to the approach to be taken to the assessment risk posed to children at an interim hearing at [55]–[58] was accurate. During the course of the mother’s submissions in the appeal hearing, two iterations of this complaint emerged:
(a)Firstly, the mother submitted that primary judge was obliged to and did not consider the “magnitude” of the asserted risk of harm to the children. That failure was described as “absolute”, in that the reasons reflected a complete lack of analysis or consideration by the primary judge of the “impact of the harm” on the children.
(b)Secondly, it was asserted that the primary judge was obliged to and did not “separately” consider each of the mother, father and the ICL’s proposals. It was the mother’s contention that only the father’s proposal received such an evaluation and that her proposal did not.
Although the two assertions of the mother are related, for the sake of completeness we shall attempt to address them each in turn.
As to the first iteration, if we understand it correctly, the mother submitted than an assessment of risk involves a sequential weighing of “two factors”, being the likelihood of the asserted risk and, subsequently, its magnitude. Hence the gravamen of her complaint as argued was that the primary judge fell into error in that having considered the “likelihood of the asserted risks”, she failed to then consider the severity of those risks.
Throughout the hearing before the primary judge, including during the cross-examination of the Court Child Expert and oral submissions, each party’s binary proposal was targeted at ensuring the children were not exposed to an unacceptable risk of harm by the other. Putting it simply, the hearing proceeded on the basis that the children were either at an unacceptable risk of harm in the father’s care or they were at an unacceptable risk of harm in the mother’s care. Both parents and the ICL were unequivocal in contending that such unacceptable risk could only be mitigated by imposing supervision of limited time spent. Neither of the parents nor the ICL challenged that dichotomy.
The mother submitted in the appeal hearing that the reasons of the primary judge did not explicitly consider the magnitude of the asserted risk. That submission is wholly without merit. The reasons reveal that the primary judge explicitly accepted the premise on which the case was conducted by the parents and the ICL, as follows:
59.In terms of assessing the children’s best interests, the heart of the issue I must now decide is whether I am of the view that based on the substantially untested evidence before me, the risks to the children are of such a magnitude that they should only have professionally supervised time with their father as asserted by the mother; or that the risks to them are of such a magnitude that they should only have professionally supervised time with the mother, as asserted by the father and supported by the Independent Children’s Lawyer.
It was on that polarised landscape, the scope of which was carved out by the parents and the ICL, that the primary judge was asked to determine what parenting arrangements were in the children’s best interests.
The second iteration of the mother’s complaint developed during the course of oral submissions to be that the primary judge, after arriving at her conclusion as to risk, was obliged to “separately consider” the proposals put forward by the parents and the ICL.
During the hearing we raised with the appellant the Full Court’s decision in Banks & Banks (2015) FLC 93-637, which relevantly provides that:
48.It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. …
49.… there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.
50.When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.
Although the primary judge turned her mind to other factors, she recognised that the decisive issue to be determined at this interim stage of the proceedings was how best to protect the children from potential exposure to an unacceptable risk of harm. That was determined by the primary judge as follows:
82.Overall, and doing the best I can on the substantially untested evidence currently before the Court, it appears that the concerns expressed by the Independent Children’s Lawyer, the father, the police and Child Protection regarding the mother’s ability to provide a safe and secure home for the children are more plausible than the mother’s allegations that the children are at significant risk in the father’s care. That is, when I weigh all the evidence and assess the probability of the parties’ competing claims, it seems that the father does not pose an unacceptable risk to the children such that his time with them needs to be supervised. However, there does appear to be on the untested evidence a greater likelihood that the children are at risk of emotional and psychological harm if they continue to spend significant and substantial time in their mother’s care on an unsupervised basis.
83.It appears to me, in all the circumstances, that the children’s best interests would be met on an interim basis by being placed in the primary care of the father, and with the mother’s time with them being subject to professional supervision.
The primary judge’s task was to assess the evidence and identify whether either risk as asserted was unacceptable. The process of evaluation by the primary judge as to the probabilities of the competing claims was substantial, considered and correctly completed. It lead her to the conclusion at [87] that “the evidence in support of the mother’s contentions [as to risk] is weaker.” It was open for the primary judge to so conclude applying the process identified by the Full Court in SS v AH [2010] FamCAFC 13.
The mother’s argument, if it were accepted, would require the primary judge to engage in mental gymnastics by separately considering the merits of the mother’s proposal for the children to spend unsupervised time with her, having already concluded that she posed an unacceptable risk to the children that could only be ameliorated if time spent was supervised. As identified by the Full Court in SCVG & KLD (2014) FLC 93-582, that would have been a sterile, nonsensical exercise, particularly when the mother did not countenance or articulate any fall-back proposal.
We reject this iteration of the mother’s complaint.
There was an undercurrent to the mother’s submissions that a risk of physical harm is more substantive than a risk of psychological or emotional harm. To the extent that such implication, which could not be grounded by way of legislation, precedent, or expert evidence, formed part of the mother’s case on appeal, it is rejected.
The grounds are wholly misconceived. These grounds fail.
Ground 9 – error of law by accepting expert opinion evidence of a contested fact
This ground contends that:
9.The Primary Judge erred in making the following findings of fact which were contested:
a)the Father will be able to manage and support the children; and
b)the children would not be shocked or traumatised by the change in residence.
The genesis of these conclusions of the primary judge at [89] was the evidence given by the Court Child Expert in cross-examination. Hence, this ground in reality asserts error in the primary judge’s acceptance of the opinion of the Court Child Expert because it was given in an abridged interim hearing process.
There was some misapprehension in the prosecution of the mother’s appeal that at an interim hearing the Court is prohibited from making any finding of fact on a controversial issue. Although the Full Court in Goode and Goode (2006) FLC 93-286 cautioned that the Court should be circumspect in making findings on contentious facts in this context, it has made clear that evidence must not be ignored simply because it is contested. At any stage of a proceeding, including at an interim hearing, the Court is both expected and required to give credible evidence appropriate weight.
There was no probative submission made at the appeal hearing by the mother as to why the primary judge should not have accepted the Court Child Expert’s evidence as it emerged in cross-examination. Simply because the mother disputes the Court Child Expert’s opinion does not render it not credible or unreliable.
In the course of interlocutory disputes, the Court is ordinarily asked to have regard to an array of conflicting and untested evidence. The evidence relied upon by the primary judge of the Court Child Expert was not that: it was tested and was credible. The mother’s bare assertion that evidence given under cross-examination at an interim hearing is somehow different to that given at a final hearing was made without substantiation and is rejected.
Ground 9 is misconceived. It fails.
Grounds 5, 7, 11, and 17 – errors of principle and issues as to weight relating to family violence
These grounds were also grouped for the purpose of the mother’s oral submissions. They collectively assert an error of the primary judge’s treatment of issues as to the allegations and evidence of family violence.
Ground 11 asserted that the primary judge erred at law by disregarding allegations of family violence because there was no corroboration. The mother’s Summary of Argument articulated the complaint in this way:
19.The Primary Judge should have accepted the allegations of domestic violence in an interim hearing and it was an error of law to require corroboration. …
(Mother’s Summary of Argument filed 12 October 2022)
This is a specious characterisation of the primary judge’s reasons. The primary judge set out the particulars of the allegations made by the mother (at [15] and [26]). The reasons record a process of careful identification and evaluation of all of the evidence available so as to assess the weight that ought to be attributed to the allegations including:
(a)at [75]–[78], reviewing the evidence of statements made by the children to Ms C, an ‘Early Parenting Consultant’;
(b)at [65]–[81], engaging with the mother’s criticisms of the investigations undertaken by and the conclusions reached by SOCIT and Child Protection. This included investigations with and observations of the mother and the children, with and of the father and the children, and at the children’s kindergarten;
(c)at [85], appraising the mother’s allegation that the children would return from the father’s home with “unexplained bruising” as “difficult to reconcile” with there being “no independent evidence that [anyone] has observed marks on the children”; and
(d)at [86], observing that the father’s interactions with the children grounded from the Court Child experts opinion were unremarkable.
The primary judge’s reasons then recorded the conclusion that:
87.I accept that the evidence in relation to the allegations of risk both ways is untested, and I am not making definitive findings. However, it seems that the evidence presented by the father and the Independent Children’s Lawyer in support of their assertions is reasonably strong, whereas comparatively the evidence in support of the mother’s contentions is weaker.
Such conclusion does not reflect a rejection of the mother’s allegations for want of corroboration. Rather, it reflects the primary judge appropriately weighing the mother’s allegations of family violence in the context of them being uncorroborated in circumstances where corroboration might have been expected. This ground fails.
Ancillary to Ground 11 was a submission made by the mother that the primary judge should have accepted her allegations of family violence because the evidence was untested at the interim stage of the hearing. Insofar as this was the argument advanced, it is rejected for the reasons given above. It was the task of the primary judge to engage with the available evidence, to assess its quality in the terms identified earlier in these reasons, and thereafter to weigh the evidence and react to it in the exercise of discretion. That is what the primary judge did.
The balance of these grounds challenge the weight attributed by the primary judge to the mother’s allegations of family violence. These grounds were not the subject of oral submissions at the appeal hearing beyond those advanced in support of Ground 11. In any event, questions of weight are ordinarily a matter for the primary judge and appellate challenges to such exercises of discretion are difficult to surmount (see e.g. Lovell v Lovell (1950) 81 CLR 513 at 519; Hedlund & Hedlund [(2021) 64 Fam LR 458 at [37]).
It was not explained how a challenge as to weight could be successfully maintained when the reasons of the primary judge were replete with consideration and evaluation of the competing allegations of unacceptable risk, including family violence. The primary judge’s assessment of the evidence was exacting and her attribution of weight to that evidence was appropriate.
These grounds fail.
Ground 12(a) – inadequate or insufficient reasons
This ground asserts:
12. The Primary Judge failed to provide proper reasons for:
a) the capacity of the Father to look after the children.
Contrary to the assertion of the mother, the primary judge’s reasons on this issue make it entirely plain how findings on this subject matter underscored the orders made. At [81] the primary judge identified that the father runs his own business from home, that he was able to structure his work arrangements around the children who attend kindergarten, and that his home was the former family home in which he and the mother lived prior to separation. At [89] the primary judge records the evidence of the Court Child Expert that the father presented as capable of caring for the children. As explained above, it was open for the primary judge to accept this expert evidence.
This ground had no merit. It fails.
Ground 14 – failure to make a “proper decision”
This ground asserted that the primary judge “failed to make a proper decision on the Father’s ability to look after the children, given that he was working on a full-time basis.”
The mother’s Summary of Argument contended that the submissions made in support of Ground 4 also supported this ground. That cross-reference was nonsensical. No further submissions were made by the mother in the appeal hearing to explain or support the ground.
Regardless, the primary judge’s reasons as to the father’s capacity to care for the children have already been addressed and were sufficient. The conclusion was open to the primary judge and supported by tested expert evidence.
The complaint in this ground, whether it be as to reasons, weight, or an error of law, is rejected. The ground fails.
Ground 13 – result is “unreasonable and unjust in all of the circumstances”
This ground contends that the result was “unreasonable or unjust in all the circumstances”. The mother’s Summary of Argument appeared to premise this complaint from a suggestion that as the mother was the children’s primary caregiver, to deprive them of spending time with her save on a supervised basis was “plainly unjust”.
At the appeal hearing the mother conceded that if she was not successful in prosecuting her proceeding grounds of appeal, this ground would fail. We agree and reject the ground for lack of merit.
Conclusion as to the appeal
For all of the above reasons, the mother’s appeal fails. Her Amended Notice of Appeal filed on 12 October 2022 will be dismissed.
Costs
In the event the appeal failed, the father and the ICL each sought costs on a party/party basis. The father quantified those costs at $11,217 and the ICL at $3,729. No issue was taken by the mother as to quantification of costs as sought although she opposed her liability for a costs order.
The father submitted a costs order ought to be made primarily because the appeal prosecuted was wholly unsuccessful. The ICL did not make submissions but implicitly sought costs on the same basis.
We understood the mother’s implicit position to be that the provision of s 117(1) ought not be disturbed. While conceding the evidence on this matter was scant, the mother identified her financial circumstances were somewhat impecunious, such submission grounded from limited evidence before the primary judge that the mother was a student. From this foundation it was submitted that an exercise of a costs discretion ought not to find favour.
The mother’s Schedule of Costs records that she was anticipated to incur legal costs of $27,670 in prosecuting her appeal (including her application to stay the orders of the primary judge). Some of those fees have been paid with the mother remaining indebted for the balance. Counsel on her behalf accepted that there was an expectation that any unpaid balance would be paid.
Neither of the parents are legally aided.
We are satisfied the application of s 117 of the Act warrants a costs order in favour of the ICL and the father. An order will be made that the mother pay those costs fixed in the sums sought.
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, McGuire & Campton. Associate:
Dated: 21 November 2022
2
0