Rusena & Rusena
[2022] FedCFamC1A 149
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Rusena & Rusena [2022] FedCFamC1A 149
Appeal from: Rusena & Rusena [2022] FedCFamC2F 472 Appeal number(s): NAA 85 of 2022 File number(s): SYC 5818 of 2018 Judgment of: MCCLELLAND DCJ Date of judgment: 23 September 2022 Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal from orders allocating sole parental responsibility to the respondent regarding whether the parties’ children should be administered with a vaccine against the COVID-19 virus – Where the parties have a history of dispute concerning the medical care of the children – Two grounds of appeal – Where the appeal is misconceived – No error established – Appeal dismissed – Appellant to pay costs of respondent and Independent Children’s Lawyer. Legislation: Family Law Act 1975 (Cth) ss 43(1)(c), 60B, 60CA, 60cc, 65AA, 117(2A)(e)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 13.10
Cases cited: A.C. v. L.L., 2021 ONSC 6530
Browne v Dunn (1893) 6 R 67; [1893] 1 WLUK 44
Buckman v Wyckham, [2020] B.C.J. No. 2175; 2020 BCSC 2076
Davies v Todd [2022] O.J. No. 1817; 2022 ONCJ 178
DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
HJ Heinze Company Australia Ltd v Turner (1998) 4 VR 872
J.F.P v J.A.G [2022] B.C.J. No 534; 2022 BCPC 44
Kyriackou v Law Institute of Victoria Ltd (2014) 45 VR 540; [2014] VSCA 322
Nimesh Watapaldeniya v Transport Accident Commission [2022] VSCA 50
Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362; [1975] HCA 27
Re C and F (Children) [2003] 2 FLR 1054; [2003] EWHC 1376 (Fam)
Ribeiro v. Wright, [2020] O.J. No. 1267; 2020 ONSC 1829
State of Victoria v Bacon [1998] 4 VR 269
TK v JW, [2022] B.C.J. No. 197; 2022 BCPC 16Number of paragraphs: 59 Date of hearing: 18 August 2022 Place: Sydney Counsel for the Appellant: Mr Cummings SC Solicitor for the Appellant: Mills Oakley The Respondent: Litigant in person Counsel for the Independent Children's Lawyer: Mr Hill Solicitor for the Independent Children's Lawyer: Kathryn Renshall Lawyers Pty Ltd ORDERS
NAA 85 of 2022
SYC 5818 of 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS RUSENA
Appellant
AND: MR RUSENA
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
MCCLELLAND DCJ
DATE OF ORDER:
23 September 2022
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant is to pay the costs of both the respondent and the Independent Children’s Lawyer within 28 days of those costs being agreed or assessed.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rusena & Rusena has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ:
introduction
This is an appeal from final orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 14 April 2022. The orders allocated the father, Mr Rusena (“the respondent”) sole parental responsibility in respect to the question of whether the parties’ two children, X and Y, should be administered with a vaccine against the COVID-19 virus. X was born in 2014 and is now eight years old, whilst Y was born in 2016 and is now five years old.
It was not disputed that the children became eligible to receive the publicly funded paediatric Pfizer (Comirnaty) vaccine on 10 January 2022, consequent upon that vaccine being approved by the Therapeutic Goods Administration (“TGA”) for the five to 11 year old age group. It was also not disputed that the vaccine has been recommended for children in that age group by the Australian Technical Advisory Group on Immunisation (“ATAGI”).
The primary judge accepted the contention of the respondent that, in order to resolve the deadlock between the parties as to whether the children should be vaccinated, he should be granted sole parental responsibility in respect to the limited issue of the children receiving the COVID-19 vaccination. In so doing, the primary judge rejected an application by the mother, Ms Rusena (“the appellant”) for an order restraining the respondent from making such arrangements as were necessary for the children to receive the vaccination.
The reasons which follow explain why I have determined that the appeal is, in its terms, misconceived and, in any event, taking as broad and expansive a view of the grounds of appeal as is reasonably possible, no appealable error has been established in the manner in which the primary judge has exercised her discretion and explained her reasons for doing so.
Background
The relevant background to this matter is set out from [4]–[15] of the reasons for judgment of the primary judge dated 14 April 2022 (“the reasons”). Relevantly, for the purpose of this appeal, I note the following.
The children currently live with the respondent and spend six nights each fortnight with the appellant.
The parties were in a relationship for seven years between 2011 and 2018.
On 22 January 2019, consent orders were entered that provided for the children to live with the appellant and spend six nights each fortnight with the respondent. Significantly, the orders provided for the parties to equally share parental responsibility for the children.
On 17 August 2021, the appellant travelled to Queensland and left the children in the care of the respondent. She has since returned.
Upon the appellant’s return from Queensland, the parties participated in a mediation on 22 December 2021. They were unable to resolve their differences.
On 23 December 2021, the appellant, through her solicitors, wrote to the respondent noting that the children would become eligible to receive a COVID-19 vaccination as and from 10 January 2022 and seeking an undertaking from the respondent that he would not arrange for the children to receive that vaccination.
Upon receiving no further response from the respondent, on 29 December 2021, the appellant filed an Initiating Application in the National COVID-19 List of this Court seeking urgent injunctive relief to restrain the respondent from arranging such vaccinations.
On 6 January 2022, the respondent arranged for both of the children to be examined by their local general practitioner, Dr B, who provided the respondent with a medical certificate confirming that the children had no underlying health conditions which suggest that the children would be at a particular risk from being vaccinated against the COVID-19 virus. It is of significance that this issue was not in dispute during the course of the proceedings or in this appeal.
To enable the issue of vaccination to be determined by the Court, on 5 January 2022 the parties consented to an order restraining either party from causing or facilitating the children receiving the COVID-19 vaccination pending further order. This was in the context where the vaccination application was subsequently set down for hearing on 30 March 2022 following an interim hearing before the primary judge on 15 March 2022.
At the interim hearing before the primary judge on 15 March 2022, the matter was listed in respect to determining which school the children should attend and whether the children should spend additional time with the respondent. Orders were made for the children to attend the school nominated by the respondent, and for the children to live with the respondent and spend six nights per fortnight with the appellant. It was not disputed that the order identifying the school that the children were to attend was not intended to be an order for the respondent to exercise parental responsibility in respect to the children’s schooling.
As noted above, the parties also agreed at the interim hearing for the issue of vaccination to be expedited and heard on a final basis.
On 21 March 2022, X tested positive for COVID-19 but has since recovered and, pleasingly, does not appear to suffer any ongoing consequences.
Grounds of Appeal.
The grounds of appeal are set out in the appellant’s Amended Notice of Appeal filed on 7 July 2022 as follows:
1.That the Primary judge acted on a wrong principle and without evidentiary foundation in:
(a)framing the question as one that involved the identification as to unacceptable risk and then
(b)erroneously finding, implicitly, that the effect of the children not being vaccinated at this time exposed them to an unacceptable risk of harm.
2.That her Honour erred in principle in failing to give any or any adequate reasons for the conclusions reached in ground 1.
Appeal misconceived
The appeal is, with respect, based on a false premise and is therefore wholly misconceived. It can be seen that the appellant’s first ground of appeal is expressed conjunctively - it is not expressed in the alternative. That is, the error on the part of the primary judge was stated to be a combination of both:
(a)framing the question as one that involved the identification as to unacceptable risk and then
(b)erroneously finding, implicitly, that the effect of the children not being vaccinated at this time exposed them to an unacceptable risk of harm.
(Emphasis added)
This ground of appeal is readily dismissed by having regard to the second aspect of that contended error which, as I have noted, is by its terms interconnected with the first aspect of the contended error. That second aspect of the purported error is contended to be the implicit erroneous finding by her Honour that the effect of the children not being vaccinated at this time exposed them to an unacceptable risk of harm. It is to be noted that it is not contended that the primary judge made that explicit finding, but rather, it is contended that the primary judge “implicitly” made that finding. There is no reasonable basis for that contention. At no stage during the course of the proceedings or in her judgment did the primary judge, either by express or implicit reference, find that the effect of the children not being vaccinated at this time exposed them to an unacceptable risk of harm.
The language used by the primary judge throughout her decision was balanced and acknowledged that there were both benefits and risks associated with the children being vaccinated. At no stage did her Honour say, expressly or by implication, that the children faced an unacceptable risk of harm if they were not vaccinated or, for that matter, if they were vaccinated. Indeed, by allocating parental responsibility to the respondent to make the decision as to whether or not the children should be vaccinated the primary judge left open the possibility that the children would not be vaccinated.
Further, even if one ignores sub ground (b) of the first ground of appeal (as set out above), there is no reasonable basis for the contention that the primary judge determined that the central question in the proceedings “involves the identification as to unacceptable risk.” Rather, her Honour’s assessment as to the possible existence of unacceptable risk occurred in the context of her Honour fulfilling her statutory responsibility to have regard to the totality of those matters set out in s 60CC of the Family Law Act 1975 (Cth) (“the Act”), insofar as those considerations are relevant to these proceedings.
At [44] of the reasons the primary judge noted, with respect, correctly and by reference to ss 60CA and 65AA of the Act, that the touchstone in all parenting proceedings is “to regard the child’s best interests as the paramount consideration.” Her Honour noted the legislative guidance provided to the Court in determining that question, as set out in s 60CC of the Act, with those considerations being informed by the objects of the Act set out in s 60B and the general requirement set out in s 43(1)(c), which requires the Court in exercising its jurisdiction to have regard to “the need to protect the rights of children and to promote their welfare.”
No error has been demonstrated in respect to the manner in which the primary judge considered and applied those s 60CC considerations relevant to the determination of this matter, including but not limited to the children’s respective ages, level of maturity and characteristics (ss 60CC(3)(a) and (g)); the nature of the relationship of the children with each parent (s 60CC(3)(b)); the extent to which each of the children’s parents have failed to take the opportunity to participate in making decisions about major long-term issues in relation to the children (s 60CC(3)(c)); the attitude to the responsibilities of parenthood demonstrated by each of the children’s parents (s 60CC(3)(i)) and, finally, in the context of considering the totality of those issues, but not as the central question, the issue of risk (s 60CC(2)(b)).
Accordingly, the first ground of appeal is misconceived and is without merit.
Having determined that the first ground of appeal is without merit, the second ground of appeal must also necessarily be dismissed because it is inextricably linked to the false premise set out in the first ground of appeal. That is, it is contended that the primary judge provided inadequate reasons for the purported conclusions reached in Ground 1 which, as I have explained, were conclusions that were not made by the primary judge, either explicitly or by implication.
Accordingly, the second ground of appeal is also without merit.
For these reasons the appeal must be dismissed.
Attempted expansion of the grounds of appeal by the filing of a Summary of Argument
It became apparent during the course of the appeal that the appellant effectively sought to expand her grounds of appeal by relying upon submissions based on her Summary of Argument. A number of authorities emphasise the importance of an appellant properly particularising the asserted error which they contended was made by the primary judge (see for example, State of Victoria v Bacon [1998] 4 VR 269 (Phillips JA), HJ Heinze Company Australia Ltd v Turner (1998) 4 VR 872 and Kyriackou v Law Institute of Victoria Ltd (2014) 45 VR 540).
Further, it is to be noted that a party can amend their grounds of appeal, as a matter of right, up to and including the point at which they file their Summary of Argument (Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 13.10). The appellant actually availed herself of that opportunity by reducing the grounds of appeal from the grounds set out in her original Notice of Appeal filed on 26 April 2022 to those two grounds to which I have earlier referred. The Court, the respondent and the Independent Children’s Lawyer (“ICL”) were entitled to assume that the appellant’s Amended Notice of Appeal, which was filed on the same day as the appellant’s Summary of Argument, properly and fully represented those grounds of appeal which the appellant intended to press at the hearing of the appeal.
No subsequent application has been made to seek leave to amend the grounds of appeal beyond those set out in the appellant’s Amended Notice of Appeal filed on 7 July 2022.
In those circumstances, it would be contrary to the interests of justice to enable the appellant to implicitly expand their grounds of appeal to include points which were included in the appellant’s Summary of Argument that go beyond and have no relationship to the grounds of appeal duly advanced.
In that respect, grounds of appeal should be expressed as a “specific and concise statement of the points sought to be argued by the applicant” (Nimesh Watapaldeniya v Transport Accident Commission [2022] VSCA 50 at [2]). An appellate court cannot be expected to mine through the broadly expressed arguments that are set out in the appellant’s Summary of Argument with a view to distilling a specific and concise ground or grounds of appeal.
Accordingly, I have not considered the Summary of Argument filed by the appellant as expanding the grounds of appeal relied upon by the appellant as set out in the appellant’s Amended Notice of Appeal filed on 7 July 2022.
The primary judge’s proper exercise of discretion and explaination of reasons
Having explained why the appeal in this matter must be dismissed, for completeness I would add that I am satisfied that the primary judge has applied proper principle in exercising her discretion to award sole parental responsibility to the respondent in respect to the decision as to whether the children should or should not be vaccinated against the COVID-19 virus.
Her Honour clearly identified that there was a dispute between the parties in respect to that significant issue, which needed to be resolved.
Her Honour explained, at [42] and [43], why she decided it was inappropriate to resolve that dispute in the manner proposed by the appellant, namely, by making orders restraining the respondent from facilitating the administration of the COVID-19 vaccine to the children. No ground of appeal has challenged her Honour’s decision in that respect.
Having rejected the appellant’s proposed approach to resolution of the dispute, the primary judge considered the manner of resolution proposed by the respondent. No question has been raised regarding the power of the primary judge to resolve that dispute by awarding parental responsibility to one or other of the parents.
At [56] of the reasons, the primary judge explained why she determined, in the exercise of her discretion, to award that responsibility to the respondent in the following terms:
Whilst I have formed the view that each parent is genuine in the position they have adopted, the evidence presented by the [respondent] and the approach he has taken to decisions about the children’s medical treatment to date, satisfy me that he is the most appropriate parent to be allocated sole parental responsibility in respect of the decision as to whether or not the children receive vaccinations for COVID-19.
It can be seen that there are two aspects to her Honour’s determination in that respect. The first is her observations of the nature of the evidence presented by the respondent in the proceedings. That documentation evidenced preparedness on the part of the respondent to consider a wide range of advice, including advice not only from the children’s general practitioner but also a further medical practitioner, Dr C, with whom he had a relationship in the course of his employment and who he engaged as an adversarial expert. The respondent’s evidence further indicated that he had regard to additional scientific literature referred to him by that adversarial expert. Significantly, the documentation also included the respondent’s recognition and regard for public health advice that had been issued by each state and territory government in Australia and, additionally, the Commonwealth government. Such advice was provided through government departments and through instrumentalities whose role is to examine the efficacy of proposed therapeutic goods, including vaccines, and to provide public health advice to the Australian public regarding the recommended use of those vaccines, including, most relevantly in this case, the paediatric COVID-19 vaccination.
It is to be noted that comparable analysis has been applied by Canadian authorities as reflected in the decision of the Supreme Court of British Columbia in Buckman v Wyckham, [2020] B.C.J. No. 2175 where Justice Kent adopted the principles set out in the first instance decision of Ribeiro v. Wright, [2020] O.J. No. 1267, which his Honour summarised as follows at [45]:
Ribeiro is one of the first such cases and has been frequently cited across the country. In all these cases the courts have emphasized:
1.COVID-19 parenting issues will be decided on a case-by-case basis as each case is different and involves unique circumstances;
2.the court expects parents to meticulously adhere to all COVID-19 safety measures, including social distancing, use of disinfectants, and compliance with public safety directives;
3.the court also expects parents to demonstrate sensible insight, meaningful COVID-19 awareness, and all appropriate precautions necessary to protect the children;
4.the parents must do whatever they can to ensure that neither they nor their children contract COVID-19 – every precautionary measure recommended by governments and health authorities must be taken by both parents and, with their help, by the children; and
5.Neither parent should do anything that will expose themselves or the child to an increased risk of contracting the virus.
While it is to be noted those principles were adumbrated prior to the availability of the COVID-19 vaccination for children, they have since been applied in that context (see T.K. v J. W., 2022 BCPC 16 at [18]).
The second aspect of her Honour’s determination related to the nature of the respondent’s relationship with the children and the role he has played in making major long-term decisions regarding their health. Despite having the opportunity, in an affidavit filed on 17 March 2022 and subsequent to the initial affidavit filed by the respondent on 11 March 2022, the appellant did not contradict the respondent’s evidence that, for approximately the last four years, he had been the parent primarily responsible for attending to the children’s medical needs.
In referring to the respondent’s evidence not being contradicted, I note that during the final hearing, counsel for the respondent acceded to a request by counsel for the appellant that he would not take what is colloquially known as the Browne v Dunn rule,[1] that failure to cross-examine the respondent, on the part of counsel for the appellant, did not amount to a concession that the appellant accepted the veracity and truthfulness of the respondent’s evidence. That concession by counsel for the respondent did not, however, preclude the primary judge from having regard to the evidence of the respondent as set out in the affidavits upon which he relied (Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 at 365). That evidence relevantly included the affidavit filed by the respondent on 11 March 2022 and included the following assertions at paragraphs 48, 49, 54, 55 and 56:
[1] (1893) 6 R 67
48. Since the Orders were made in 2019, and even though an order was made for equal shared parental responsibility, it has been extremely difficult to co-parent in relation to the children's health and education.
49.[The appellant] has regularly failed to bring the children to scheduled medical appointments, including failing to attend the Paediatrician on 19 September 2019. Since then, I have mostly organised appointments for the children myself, including with Child Adolescents Psychology Services. [X's] first appointment with the Psychologist was on 14 November 2019 which [the appellant] did not attend. [The appellant] only attended 1 of the 4 further appointments.
…
54.Since September 2020 I have been asking [the appellant] to make an appointment with the Paediatrician for [X] as a result of behavioural issues at school and suspected ADHD, and to get [Y's] four-year-old vaccinations done. I followed up on at least 4 occasions with no response from [the appellant]. In the end I took [Y] to be vaccinated and arranged [X's] appointment.
55.As recommended by [X's] school, we had him assessed for ADHD in 2021. There was a 6 month wait for the appointment. The assessment required 3 appointments with the paediatrician. [The appellant] did not come to the first 2 appointments. For the 3rd appointment she demanded that she pick up [X] from school and take him. I agreed and told her the appointment time was 11:30am on the morning of 22 March 2021. I was told by the Doctor's office that she also would have received an email from the Doctor's office with the appointment confirmation. At 11:51am on the day of the appointment, I receive a message from her that she didn't see my message about the appointment and that she also wasn't contacted by the Doctor's office. At 12:30pm, the Doctor's office called me to arrange a new appointment.
56.On 2 May 2021 [X] had his last Paediatrician appointment in relation to the ADHD assessment. I messaged [the appellant] confirming the appointment and requesting she bring [X] from school. When [the appellant] did not respond I collected X from school myself. When we were leaving school I saw [the appellant] arrive and said to her "see you at the appointment". She did not attend the appointment. The reception staff tried calling her twice but she did not answer. As far as I am aware, [the appellant] has not contacted the Paediatrician about the outcome of the assessment for [X].
That evidence was plausible and, in circumstances where the appellant had the opportunity to take issue with that evidence but declined to do so in her further affidavit filed on 17 March 2022, the primary judge was entitled to have regard to that evidence in determining that the respondent had been primarily responsible for attending to the children’s medical needs including, in more recent years, the children’s vaccinations.
It was also reasonably open to the primary judge to find that the respondent was best placed to exercise parental responsibility in respect to whether the children should receive the COVID‑19 vaccination, having regard to the appellant’s evidence that she had, as explained by her counsel in the proceedings, posted a number of Facebook posts which her counsel described as reflecting a “healthy scepticism”[2] regarding the efficacy of COVID-19 vaccinations.
[2] Transcript 30 March 2022, p.31 line 31.
It was also reasonably open to the primary judge to have regard to the submission made by the appellant’s legal advisers, on instructions from the appellant, that information provided by the Australian Government and ATAGI to the people of Australia in respect to the efficacy of the COVID-19 vaccines for children aged between five and 11 was “biased”.[3]
[3] Outline of Case Document (Interim Hearing) filed by the appellant on 29 March 2022, paragraph 26 (xi).
In other words, it was reasonably open to the primary judge to conclude that the respondent was possessed with a reasonably open mind, prepared to research and consult widely regarding the efficacy of the children receiving the COVID-19 vaccinations and was, therefore, best placed to make a determination as to what was in the children’s best interests. It was also reasonably open for the primary judge to conclude that, comparatively, the appellant at the present time and for an undefined period, has closed her mind to that potential efficacy of the paediatric COVID-19 vaccination.
It was unnecessary for the primary judge to rule upon the conflicting expert opinion
As noted by the High Court in DL v The Queen (2018) 266 CLR 1 at [131]:
If the parties advance conflicting evidence on a matter significant to the outcome, both sets of evidence should be referred to and reasons provided for why the judge prefers one set of evidence to the other.
(Emphasis added) (Citation omitted)
However, in the circumstances of this case where the primary judge determined that the decision in respect to whether the children will receive the COVID-19 vaccination is a decision that should be made by the respondent in consultation with the children’s treating doctors, it was unnecessary for the primary judge to attempt to resolve the dispute between the clear and unequivocal position stated in the public health advice and that proffered by Dr D. Indeed, there is a serious question as to whether a trial judge, with limited capacity to do so, should attempt to make a determination that potentially undermines vitally important public health advice on the basis of the relatively cursory consideration of the issue that necessarily occurred in the context of these proceedings (see consideration of this issue by comparable Canadian Courts in TK v JW, [2022] B.C.J. No. 197 at [14]-[15] and [35], A.C. v. L.L., 2021 ONSC 6530 at [28] and [34], J.F.P v J.A.G [2022] B.C.J. No 534 at [17], and Davies v Todd [2022] O.J. No. 1817 at [32] and [70]).
This is not a case where the Court made a decision mandating that the children are to be vaccinated. Rather, the primary judge left consideration of that issue to the respondent, who she noted had the benefit of his own professional advice and relevant government advice. Accordingly, the differing opinions of the parties’ respective experts was not a matter of significance to the outcome of these proceedings.
Indeed in making his decision, the respondent also had available to him for consideration the advice proffered by Dr D, which her Honour summarised at [33]–[34] of her reasons. No issue has been taken as to the accuracy of her Honour’s summary in that respect. Relevantly, the primary judge determined that the respondent is well placed to rationally and objectively consider the totality of that advice, with a view to making a decision that is in the best interests of the children and one which was consistent with their welfare. This is in circumstances where it was acknowledged that neither of the children have an unusual medical history that would expose them to a particular risk associated with vaccination (Re C and F (Children) [2003] 2 FLR 1054 at [320]).
Additionally, it is evident from the reasons for judgment of the primary judge that she considered that, even taking Dr D’s evidence at its highest, it cannot be said that the children faced an unacceptable risk of harm in the event that the respondent takes a course of action, which he has foreshadowed, of arranging for the children to be vaccinated. In that respect, Dr D did not recommend against the children being vaccinated but, rather, opined that the appropriate approach was to regard the issue as one to be determined by informed parental consent.
In summary on this issue, having formed the view that the respondent was best placed to consult and objectively consider appropriate medical advice, such that it was appropriate to make orders allocating parental responsibility in respect to the COVID-19 vaccinations to him, it was unnecessary for the primary judge to consider and adjudicate upon those aspects of difference between the parties’ respective adversarial experts.
Accordingly, for these reasons, even taking an expansive approach to the appellant’s grounds of appeal, the appeal must be dismissed.
Costs
In circumstances where the appellant has been wholly unsuccessful in the proceedings (s 117(2A)(e) of the Act) and the evidence establishes that she has sufficient resources to engage senior counsel in the appeal proceedings, it is my view that the appellant should be ordered to pay the costs of the other parties, including the ICL.
In that respect, I note the submission by senior counsel for the appellant that the ICL did not play an active part in the proceedings. Nonetheless, the ICL plays an important role in representing the best interests of the children in proceedings before this Court and the issues in these proceedings were such that it was appropriate for the ICL to at least maintain a watching brief. Moreover, ultimately, the ICL made a submission that it was important for these proceedings to be expeditiously resolved and that, in the event of the appeal being upheld, the Full Court should re-exercise rather than remit the matter to another judge of the Court for re-hearing.
There was argument during the course of the proceedings as to what portion of the respondent’s costs, who was self-represented in these proceedings, related to the appeal as opposed to the respondent’s unsuccessful opposition to the appellant’s stay application, where the respondent was legally represented. In those circumstances, the order for costs will be for the appellant to pay the costs of the respondent in respect to this appeal within 28 days of those costs being agreed or assessed.
Similarly, in circumstances where the costs of the ICL have not been itemised, the order will require the appellant to pay the costs of the ICL in respect to this appeal within 28 days of those costs being agreed or assessed.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 23 September 2022
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