SERHAN & SERHAN
[2016] FamCAFC 180
•8 September 2016
FAMILY COURT OF AUSTRALIA
| SERHAN & SERHAN | [2016] FamCAFC 180 |
| FAMILY LAW – APPEAL – CHILDREN – Where the appellant father alleged the primary judge had made errors of fact and had failed to give proper consideration to previous shared care arrangements that had been in place in relation to the parties’ child – Where the appellant father further asserted the primary judge’s finding of family violence was not open to her and that the primary judge made the parenting orders that she did because of the appellant father’s visual impairment – Where the Full Court found none of the grounds were made out – Appeal dismissed – No order as to costs. |
| Family Law Act 1975 (Cth) |
| CDJ v VAJ (1998) 197 CLR 172 Gronow v Gronow (1979) 144 CLR 513 |
| APPELLANT: | Mr Serhan |
| RESPONDENT: | Ms Serhan |
| INDEPENDENT CHILDREN’S LAWYER: | Kathryn Renshall Lawyers |
| FILE NUMBER: | SYC | 3560 | of | 2012 |
| APPEAL NUMBER: | EA | 8 | of | 2015 |
| DATE DELIVERED: | 8 September 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Bryant CJ, Murphy and Kent JJ |
| HEARING DATE: | 31 August 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 22 December 2014 |
| LOWER COURT MNC: | [2014] FCCA 2969 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | In person |
| SOLICITOR ADVOCATE FOR THE RESPONDENT: | Mr Leamey |
| SOLICITOR FOR THE RESPONDENT: | David Leamey Solicitor |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Gardiner |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Kathryn Renshall Lawyers |
Orders
The application in an appeal filed by the appellant on 15 April 2015, insofar as it seeks the court to waive the cost of the provision of transcript, be dismissed.
The appeal be dismissed.
There be no order as to costs.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Serhan & Serhan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 8 of 2015
File Number: SYC 3560 of 2012
| Mr Serhan |
Appellant
And
| Ms Serhan |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
On 22 December 2014 Judge Walker made final parenting orders concerning L (“the child”) born in 2009 following the trial of parenting proceedings between the child’s parents Mr Serhan (“the father”), Ms Serhan (“the mother”) and the independent children’s lawyer (“the ICL”).
Those orders relevantly provided:
· For the mother to have sole parental responsibility for the child, with some provisos;
· For the child to live with his mother;
· For the child to spend time with his father commencing from the date of the orders each Sunday from 9:00am to 4:00pm and gradually increasing to provide that by the commencement of the 2016 school year, the child spend time with the father from after school on each alternate Friday to 5:00pm Sunday.
The orders also provided for the child to spend time with the father on special days, school holidays and Christmas school holidays, and provided for changeover to occur either at the child’s school or the police station near the father’s home. Ancillary orders were also made including an order which enabled the mother to enrol the child at a primary school near to her home.
By notice of appeal filed 15 January 2015 the father appeals the order giving the mother sole parental responsibility (Order 1), the order that the child live with the mother (Order 2), the orders providing for the time between the child and the father (Orders 2 and 3), and the order allowing the mother to enrol the child at a primary school near her home (Order 5).
The proceedings below
The primary judge identified the issues between the parents at the hearing as how much time the child should spend with each parent and whether there should be an order for equal shared parental responsibility.
The primary judge highlighted the fact that each of the parents had made serious allegations about the other and that there were issues about the truthfulness of what each of the parents at times had said. The primary judge also highlighted that each of the parents loved the child and that he would benefit from a relationship with each of them.
To give context to the appeal, the mother was seeking orders that the child live with her and she have sole parental responsibility for him. She initially proposed that the child spend time with his father on 26 occasions at a contact centre to be supervised, then each Sunday from 9:00am to 3:00pm on six occasions and thereafter each alternate weekend from 9:00am Saturday to
7:00pm Sunday, as well as special days and part of the school holidays. The mother proposed that the child be enrolled at a nominated primary school near to her home.
The father proposed that he and the mother have equal shared parental responsibility for the child and that there be a shared care arrangement so that on a two week basis the child live with his mother from 9:00am Tuesday to 6:00pm Friday in one week and from 9:00am Thursday to 6:00pm Monday in the second week, and at other times the child should live with the father. He proposed that the child spend time with each parent during school holidays and that the child be re-enrolled at pre-school near the father’s home (which was the former matrimonial home) and later at a primary school near his home.
It should be noted that the father’s proposals were consistent with the orders made by consent between the parties on 20 September 2012. Those orders remained operative between the parties until the mother made an application for variation of the orders in mid-2013 seeking that the time between the father and child be supervised. On 3 July 2013 the September 2012 orders were varied and contact between the father and child was to be supervised and to take place at a contact centre.
The primary judge noted that at the conclusion of the trial that each of the parties accepted certain orders proposed by the ICL to the extent that the mother continued to maintain there should be an order for sole parental responsibility but accepted provision should be made for the father being notified about decisions relating to major long term issues concerning the child. Subject to the father continuing to participate in counselling the mother also accepted that the re-establishment of the father’s time with the child did not require supervision and she also accepted a modified schedule leading to alternate weekend contact (see [33] and [34]).
The father accepted the proposals of the ICL about some matters but maintained that the child should spend equal time with each of the parents.
As explained above, the father was not successful in his proposal for equal shared parental responsibility, nor in his application for the child to spend equal time with each of the parents.
Grounds of appeal
There are five grounds of appeal in total. Ground 5 is not a proper ground of appeal. The four remaining grounds can be described as follows:
·Ground 1 asserts the facts on which the judge has determined the case are incorrect.
·Ground 2 asserts that because interim orders made in July 2013 (which resulted in the father having to spend supervised time with the child) were made on the basis of false allegations by the mother, proper consideration was not given by the primary judge to the shared care arrangement previously in place pursuant to orders made in September 2012.
·Ground 3 contends that the finding of family violence was not open to the primary judge.
·Ground 4 asserts the father’s belief that his visual disability is “the only reason that the [j]udge has made these orders”.
The father was self-represented in the appeal and relied on a summary of argument filed 8 May 2015. The mother was represented and relied on a summary of argument filed 12 October 2015. The father and the solicitor for the mother made brief oral submissions. Counsel appeared for the ICL and made brief oral submissions.
At the conclusion of the hearing the court indicated that none of the grounds were made out and that the appeal would be dismissed. These are our reasons for that conclusion.
Ground 1 – The facts the Judge has determined in this matter are incorrect
As we have indicated, the primary judge identified at the outset of her reasons that each of the parents had made serious allegations against the other and that there were issues about the truthfulness of what each had at times said. There were a number of issues of fact relevant to the ultimate outcome which the primary judge was required to determine.
Given that this ground raises the primary judge’s findings of fact and that Ground 2 asserts that the primary judge did not give proper consideration to earlier shared care arrangements, the background leading to the hearing below and the areas of disputation requires some explanation.
The parents met in 2000 and at some later time commenced living together. They married in 2005 and the child was born in 2009. The father does not work full-time and is in receipt of a disability support pension because of his significant visual impairment. The primary judge noted the evidence of the father that he experienced the onset of the condition when he was about 16 years of age and that he had very restricted eyesight. The primary judge referred to a letter from the father’s treating doctor concluding that he would “be regarded as being totally blind” and noted the father’s evidence that he had some limited peripheral vision which was severely hampered in the dark.
The family consultant who gave evidence in the proceedings commented that whilst the father’s “vision impairment had a significant effect on his day to day functioning … [it] did not preclude him from living a full life and participating in the wider community” (at [173]). The family consultant also gave evidence that the father was able to live independently with some assistance and that the mother “acknowledged that she could not point to particular incidents when [the child’s] care was compromised by his father’s eyesight impairment”
(at [174]). The primary judge said at [175] of her reasons:
It was unfortunate that the father presented limited medical evidence about his eyesight and the impact of this on his daily life. However, given the evidence before the court, it appears that the father, with assistance, has been able to manage most aspects of his daily life and care for [the child] at least up to June 2013.
The evidence before the primary judge was that the father is in receipt of a disability support pension. After a year of maternity leave following the child’s birth the mother commenced training as a public servant, working shift work during which time the father cared for the child.
When the parties separated in 2012, the mother left the matrimonial home. Despite issues between them, they reached agreement and on 20 September 2012 entered into consent orders in relation to both parenting and property issues. In relation to parenting, the consent orders provided that they would have equal shared parental responsibility for the child and share his care equally in a two weekly pattern.
Issues of family violence alleged against the father were an important feature of the trial below and the primary judge’s reasons. In her consideration of the primary considerations (ss 60CC(2)(a),(b) and (2A)) her Honour found that the child would benefit from a meaningful relationship with his father but noted “[a]t the same time there are issues relating to [the child’s] protection from exposure to family violence which are an important consideration in assessing [the child’s] best interests in this matter” (at [46]).
According to the primary judge’s reasons, problems arose around the time of separation when the father discovered text messages between the mother and a work colleague from which he concluded that there was a sexual relationship between them. Although this was denied by the mother her Honour found that “it would not be unreasonable for the father to conclude that there was a relationship which was more than that of work colleagues between the mother and [Mr C]” (at [53]).
The mother alleged that when the father accused her of having an affair an argument occurred which resulted in him assaulting her and holding her captive for three hours (at [55]). She attended hospital and reported the incident to the police. An apprehended violence order was served on the father and he consented to an order without any admission as to the facts asserted in its support. At the trial the father denied the allegations and denied any violent behaviour to the mother.
Her Honour detailed the mother’s evidence and the cross-examination and the evidence of the family consultant about the attitude of the father, in particular when she saw him in September 2012. The mother’s version of events (including evidence of medical reports and reports to police), the father’s version and the evidence of the family consultant were carefully considered by her Honour (see [52] to [68]).
The primary judge concluded at [68] that:
While the father acknowledged that he screamed at the mother when he spoke with the family consultant in 2012, it is also likely that he was physically violent to her. The mother told the family consultant about this incident in September 2012 at a time when she was prepared to make acknowledgements about some positive attributes of the father.
The primary judge noted (at [69]) that at the same time it was likely the mother had exaggerated aspects of the incident, particularly her allegations about the injuries she received.
The mother also gave evidence of other instances of the father’s behaviour which the primary judge also carefully considered:
(a)An occasion when she and the father were walking in public and he grabbed her bag and took her wallet and mobile phone. She reported this incident to the police. The primary judge detailed the evidence and cross-examination (at [70] to [72]) concluding at [73] that “it is likely that there was an incident between March 2012 and May 2012 when the father grabbed the mother’s phone and bag.”
(b)An incident in May 2012 when the mother alleged the father forced his way in to her home and she called the police. Following this incident the apprehended violence order was extended for 18 months although again by consent and without any admission by the father.
(c)The primary judge referred to allegations by both parties about incidents at a railway station (at [76]) which were denied by the father. The primary judge also referred to the mother’s evidence about receiving abusive messages on her phone which she had taken to the police in June 2013 (at [77] and [78]). Her Honour observed that the father disputed the mother’s evidence in relation to the abusive phone messages but found at [79] that it was “likely that the father left abusive messages as described by the mother”.
(d)An incident of family violence alleged by the mother on 10 June 2013 in which the mother alleged that when she arrived at the father’s home and opened the door of the car to get the child out the father became angry, opened the passenger door and put his knees on the passenger seat and leaned over to her in the driver’s seat and assaulted and threatened her. She made a statement to the police and consulted a medical practitioner. The mother was cross-examined about the incident and the father denied that he was violent to the mother. The police did not take the matter any further as there were no independent witnesses and they could not work out which of the parties was telling the truth. This incident prompted the mother on 17 June 2013 to file an initiating application in which she sought urgent orders amended shortly thereafter seeking that the parenting orders of 20 September 2012 be suspended and that she have sole parental responsibility for the child and that he live with her and spend supervised time with his father. The mother terminated the child’s arrangements to attend his pre-school and moved her premises from the area where the father was living to Suburb A and enrolled the child at a kindergarten nearby.
As we have said above, as a result of the mother’s application filed 17 June 2013, interim orders were made on 3 July 2013 for the suspension of the parenting orders. Orders were also made that day for the child to spend supervised time with the father at a contact centre. This time was not able to commence until December 2013 and it was uncontroversial that the child, who had been in an equal shared arrangement, did not have contact with his father from July to December 2013.
On 12 May 2014 the father was issued with a warning from staff at the contact centre because it was said that he “‘became disrespectful to staff’ and that such behaviour had been observed previously” (at [23]). The father’s time at the contact centre was suspended on 6 June 2014 and the child did not spend time with his father again up to the commencement of the trial before the primary judge.
At the conclusion of the trial on 8 August 2014 interim orders were made by consent providing for the child to spend time with his father each Sunday for three hours on the basis that the father continue to see a counsellor.
Her Honour however noted that the mother’s allegation of family violence by the father on 10 June 2013 arose “at a convenient time for the mother because she was intending to move to [Suburb A]”. The primary judge concluded that (at [91]) “[i]t is clear that the mother had the intention of moving to [Suburb A] prior to anything which occurred on 10 June 2013.”
A number of other incidents occurred between that date and the trial and
her Honour was, as previously mentioned, critical of both parties about their truthfulness from time to time.
At [97] the primary judge said:
It is clear that the mother has not been truthful about her relationship with
[Mr K], or when she formed the intention to move to [Suburb A], or when she moved there. Such untruthfulness must raise questions about her credit in relation to other matters. Further, of course, the mother gave the alleged events of 10 June 2013 as the basis for the restrictions she sought on [the child’s] time with his father.Her Honour was also required to consider matters in relation to the father’s behaviour, particularly at the contact centre and she said (at [99]) “[a]s will be seen there is evidence from the contact centre which refers to observations of the father’s overreactions and aggressive responses although they are denied by the father.” At [100], her Honour said there “is a further difficulty in this matter that the father’s credit on many matters is also in issue.”
Her Honour dealt with each of the parties’ allegations against the other and the issues of credit comprehensively in her reasons for judgment. Her Honour also took into account the interactions between both parties and the family consultant in September 2012 and again in 2014. Her Honour concluded
(at [137]):
As discussed there were times when it was evident that both the mother and the father were not frank in the evidence that they gave. Further, other aspects of the evidence of each were clearly exaggerated. The mother’s case relating to her allegations of physical violence and injury was not supported by medical evidence, although the court accepts that she visited a medical practitioner after the incidents in March 2012 and June 2013 referred to in the judgment. The complaints of injury after the incident on 7/8 March 2012 were not supported by the observations in the police notes although it was recorded that the mother complained of pain to her head. The mother has been particularly untruthful about where she lived after June 2013 and about her relationship with [Mr K]. She acted unilaterally in withdrawing [the child] from his kindergarten. She clearly planned to do that before the incident on 10 June 2013.
In relation to the father her Honour said at [138]:
At the same time, many of the father’s denials cannot be accepted. Some of his assertions and allegations are implausible. The evidence was that he suffered considerable emotional upset as a result of the mother’s behaviour with [Mr C]. He was very distraught and became very focused on the mother’s relationship. He has at times found it very difficult to keep his emotions and hostility to the mother in check.
Her Honour then concluded at [139]:
Even though the mother has exaggerated certain events and been untruthful about important matters, the court finds that it is likely that she has suffered family violence from the father. This has certainly involved verbal abuse and in March 2012 and on June 2013 it is likely to have involved an element of physical abuse.
Her Honour observed that the child was present at some of the confrontations between his parents and that he needed to be protected from exposure to family violence. The primary judge accepted the evidence of the family consultant that the child’s relationship with his father had been disrupted and that his time should be increased on a gradual basis so that both the child and his father could “learn to deal with the change”. Her Honour found that the child had a close relationship with the mother and up until mid-2013 had a close relationship with his father (at [151]). Her Honour also found that the father was “highly motivated to participate in making decisions about major long term issues concerning [the child] and to spending time with him” (at [155]).
Her Honour noted at [161] that it was opinion of the family consultant that given the child had been primarily in the mother’s care for over 14 months it would be difficult for the child to spend equal time with the mother and father and said she “was not significantly challenged about this opinion and the court finds that the separation from his mother which would result from the father’s proposal would be difficult for [the child].”
In his summary of argument the father can be seen to simply repeat his denial of the mother’s assertions made at trial and dealt with comprehensively by the primary judge. It is clear she assessed the evidence of both the parties and gave reasons for making findings and why she accepted or rejected the evidence of each of the parties. Other than to repeat his denials of the assertions of the mother, the father has not established the findings made by her Honour which underpinned her ultimate decision were not open to her. In fact, it is clear from the totality of her Honour’s judgment, that the findings were open and there is no merit in Ground 1.
Ground 2 – Because of Orders made 3 July 2013 following allegations made by the mother which were false, [the child] and I had no time together for 7 months. The Judge did not give proper consideration to the shared care arrangement set out in the orders of September 2012
Her Honour was aware of the consent orders providing for equal time to be spent with the child and each of the parents (see [144] and [145]). Her Honour detailed what had occurred in June 2013 when interim orders were then made for the child to spend supervised time with his father at a contact centre.
She observed at [146] that the child did not see his father from mid-June 2013 until December 2013 and acknowledged at [150] that the family consultant observed that the child’s relationship with his father had been disrupted. Her Honour found at [150]:
It must be likely that the separation and reintroduction at the contact centre has affected [the child’s] relationship with his father. It was the family consultant’s opinion that [the child’s] time with his father should be increased on a gradual basis so that both [the child] and his father could learn to deal with the change.
Her Honour accepted the opinion of the family consultant that a gradual reintroduction to spending time together outside the contact centre was necessary (at [151]). In considering s 60CC(3)(d) which requires the court to consider the likely effect of any changes in the child’s circumstances, the primary judge found at [161], as we have described above, that:
It was the opinion of the family consultant at the hearing that such a separation from his mother, given that he had primarily been in her care for over fourteen months would be difficult for the child.
Although not articulated in this way, the father’s complaint is that the primary judge placed insufficient weight on the fact that the parties had jointly shared in the care of the child until June 2013 and as a result should have made orders returning to that regime. As is clear, her Honour was aware of the previous arrangement for the child but also of what had occurred since that time, and in particular the family consultant’s view that it would be difficult for the child to revert to that arrangement.
This is a challenge to a discretionary decision reached on the basis of facts which were open to the primary judge. An appellate court’s decision that a primary judge’s discretionary conclusion is wrong must have a discernible proper foundation and that foundation cannot be merely that it would have reached a different decision based on the same facts (see Gronow v Gronow (1979) 144 CLR 513, 519 per Stephen J). As Kirby J said in CDJ v VAJ (1998) 197 CLR 172 in relation to intermediate appellate courts reviewing the decisions of primary judges:
They need to recognise that it is at the very nature of such decisions, including those relating to the residence of children, that any two decision-makers may, with complete integrity and upon the same material, often come to differing conclusions. This is an inescapable feature of the nature of this jurisdiction.
(footnotes omitted)
It was open to her Honour on the evidence to make orders which would gradually reintroduce time between the child and the father and this ground cannot succeed.
Ground 3 – the finding of family violence is incorrect. There has never been an altercation between the mother and I. I have never been charged with any breach of AVO
Section 4AB(1) of the Family Law Act 1975 (Cth) (“the Act”) expresses the definition of family violence as follows:
For the purpose of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
It is a broad definition and encompasses comfortably the findings that
her Honour made in relation to what she found to be incidents of family violence by the father to the mother. She did not rely upon breaches of the apprehended violence orders, nor did she rely upon the fact of the apprehended violence orders, noting that the father had consented without any admission of the allegations. As we have indicated her Honour carefully assessed all of the evidence, much of which related to assertions of violence and concluded at [139]:
Even though the mother has exaggerated certain events and been untruthful about important matters, the court finds that it is likely that she has suffered family violence from the father. This has certainly involved verbal abuse in March 2012 and June 2013 it is likely to have involved an element of physical abuse.
These findings were well open to her and do not depend upon the apprehended violence orders themselves. The acceptance of some but not all of the mother’s allegations involved corroboration from both police reports and medical reporting.
Although not specifically articulated by the father in this ground as drafted, the finding of which he complains has the effect of making inapplicable the presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility (s 61DA(1), (2)). Her Honour found that there were reasonable grounds to believe that the father had engaged in family violence towards the mother and observed that accordingly, the presumption did not apply (see [191]).
However, the primary judge then went on to separately consider whether there should be an order for equal shared parental responsibility, noting that it was contended by counsel for the ICL that such an order should be made and, alternatively, if an order for the mother to have sole parental responsibility was made, there should be orders requiring her to provide certain information to the father.
At [192] the primary judge found that “[t]he conflict between the parents is intractable” and she observed that the “evidence does not indicate that there is a prospect of reasonable communication between them. In these circumstances the court does not find that it would be in [the child’s] best interests for there to be an order for equal shared parental responsibility.”
However, whilst making an order for sole parental responsibility in favour of the mother, the primary judge required her to provide the father with certain information relating to the child’s schooling and medical treatment. Although not articulated in this way, it is clear that the primary judge’s determination that the mother should have sole parental responsibility did not rest entirely upon the fact that the presumption for equal shared parental responsibility did not apply as a result of her Honour’s finding that there were reasonable grounds to believe that the father had engaged in family violence towards the mother. The primary judge independently reached that conclusion on the totality of the evidence and determined an order for sole parental responsibility was appropriate and in the best interests of the child.
Ground 4 – I believe my visual disability is the only reason that the Judge has made these orders
It will be apparent from these reasons that this complaint cannot be sustained. There were abundant reasons which we have noted for the primary judge concluding as she did that the orders made were in the best interests of the child. The father’s visual disability played a small part in the overall evidence but not in any negative sense.
At [162] the primary judge considered the difficulties the father would have if he was required to travel to Suburb A where the mother was living with the child to collect the child from school. Her Honour made orders which did not require the father to undertake such travel.
Her Honour further noted at [170] to [172] the father’s evidence as to his capacity to care for himself and the child and at [173] noted that the family consultant, who had seen the father on four occasions by the time she wrote her report, commented that:
[T]he father’s vision impairment had a significant effect on his day to day functioning but did not preclude him from living a full life and participating in the wider community. She noted that with some assistance the father was able to live independently. She referred to the mother telling her … she did not have any concerns for [the child] in his care and indicating that the father’s vision impairment had not been an issue up to that time.
At [174] her Honour noted that the “mother acknowledged that she could not point to particular incidents when [the child’s] care was compromised by his father’s eyesight impairment.” The primary judge concluded at [175]:
…it appears that the father, with assistance, has been able to manage most aspects of his daily life and care for [the child] at least up to June 2013.
Taken holistically, her Honour’s findings were supportive of the father’s capacity to care for the child despite his visual disability and did not take it into account as a negative feature in determining what orders were in the best interests of the child.
Ground 5 – I believe the mother has fabricated evidence in these proceedings as she was unhappy with the property settlement of 18 December 2012
As we have indicated, this is not a proper ground of appeal and asserts no error by the primary judge.
Accordingly, we do not find merit in any of the grounds of appeal and consequently the findings the primary judge made were well open to her on the evidence. The appeal should therefore be dismissed.
It is unfortunate that due to the amount of work in the Sydney Registry of the court that this appeal which was filed in early 2015 was not able to come on for hearing until August 2016. Although not germane to the appeal itself, because we have found no error, the father informed us that he had moved to live near the child and the school he had been attending since 2015. Time between the father and the child had increased, as we understood it, in advance of the orders providing for such an increase. We were also informed that the mother now has a four month old baby. We explained to the father that in view of the changed circumstances, had error been established the matter would have been remitted for a rehearing which would have allowed him to agitate his case for a restoration of the shared arrangements in force pursuant to the 2012 consent orders before their suspension in July 2013. But, absent error, the court cannot embark upon a consideration of new facts and circumstances (see CDJ v VAJ). To do so would be to impermissibly blur the distinction between the primary hearing and the appellate function. New facts and circumstances arising since the original decision, however, could potentially enliven the court’s power to vary the existing parenting orders under s 65D(2) of the Act.
Costs
The mother’s solicitor sought an order for costs on the basis that she was legally aided and obliged to seek costs but did not otherwise press the issue. We see no reason to depart from the position that each party should bear their own costs and accordingly there will be no order for costs.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ. Murphy and Kent JJ) delivered on 8 September 2016.
Associate:
Date: 8 September 2016
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