Slater & Light - [2011] FamCAFC 1

FAMILY COURT OF AUSTRALIA

SLATER & LIGHT

[2011] FamCAFC 1

FAMILY LAW - APPEAL – CHILDREN– Where the trial judge was concerned with the immediate need to protect the children from physical or psychological harm that would arise from either being exposed or subjected to abuse, neglect or family violence – Where the father’s time with the children was to be supervised – Where the appellant was found to influence the eldest child and undermine the respondent’s duty to care for and control that child – Where the “controlling” influence was found to amount to abuse or neglect – Where the appellant has a history of unstable psychological mood – Where the Federal Magistrate was concerned by the risk of physical harm the father posed to the children as a result of an order that the children live with the respondent – Where the presumption of equal shared parental responsibility did not apply due to family violence – Where there was no obligation to consider the alternate residential outcomes prescribed by s 65DAA – Where the best interests of the children were best served by living with the respondent and spending supervised time with the appellant

FAMILY LAW - APPEAL – CHILDREN – Where it was submitted that the trial judge acted on an incorrect principle in finding the appellant’s alignment of the eldest child was abuse or neglect – Where the Federal Magistrate erred in considering the appellant’s emotional abuse of the child as a primary consideration – The term “neglect” is not wide enough to encompass alignment or influence of a child by one parent against the other – Despite the definitional errors his Honour’s judgment was not fatally infected – Where the trial judge was obliged to consider the father’s influence on the child to be an additional consideration under s 60CC(3) – Where additional considerations may outweigh primary considerations despite the nomenclature of the subsections in s 60CC – No error established

FAMILY LAW - APPEAL – CHILDREN – Where it was alleged inappropriate weight was afforded to various parts of the evidence – No error established

FAMILY LAW - APPEAL – CHILDREN – Where it was submitted that his Honour relied on an erroneous finding of family violence and then improperly found that the presumption of equal shared parental responsibility did not apply – Where the finding of family violence was open on the evidence – Where this evidence rebutted the presumption under s 61DA(4) – No error established

FAMILY LAW - COSTS – Where the respondent was self-represented – Where the respondent does not seek costs – Where the Independent Children’s Lawyer seeks costs – Where the errors of the Federal Magistrate did not justify appellate intervention – Where the appellant is not in a position to pay costs – No order as to costs

Acts Interpretation Act 1901 (Cth) s 15AB
Family Law Act 1975 (Cth) s 4(1); s 60CC; s 61DA; s 65DAA
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)
Family Law Rules 2004 (Cth)

Aldridge & Keaton (2009) FLC 93-421
Champness & Hanson (2009) FLC 93-407
Collu & Rinaldo [2010] FamCAFC 53
Gronow v Gronow (1979) 144 CLR 513
Lovell v Lovell (1950) 81 CLR 513
Marsden & Winch (No. 3) [2007] FamCA 1364
Mulvany & Lane (2009) FLC 93-404

APPELLANT:

MR SLATER

RESPONDENT:

MS LIGHT

INDEPENDENT CHILDREN’S LAWYER:

FOREST GLEN LAYWERS

FILE NUMBER:

BRC

12787

2007

APPEAL NUMBER:

2010

DATE DELIVERED:

11 January 2011

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May, Thackray & Austin JJ

HEARING DATE:

25 November 2010

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

18 March 2010

LOWER COURT MNC:

[2010] FMCAfam 232

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Scott Lynch

SOLICITOR FOR THE APPELLANT:

Best Wilson Family Law

SOLICITOR FOR THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Rebecca Lyons

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Forest Glen Lawyers

Orders

The appeal is dismissed.
No order as to costs.

IT IS NOTED that publication of this judgment under the pseudonym Slater & Light is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 59 of 2010
File Number: BRC 12787 of 2007

MR SLATER

Appellant

And

MS LIGHT

Respondent

REASONS FOR JUDGMENT

Introduction

This appeal was instituted by the appellant father following the pronouncement of parenting orders on 18 March 2010 by the Federal Magistrates Court in relation to the children of the appellant and the respondent mother.
The essential effect of the orders was to allocate parental responsibility for the children solely to the mother, require the children to live with the mother, and require the children to spend weekly supervised time with the father at a contact centre. The orders were made on only an interim basis and the proceedings were adjourned for a period of months, pending the preparation of a further psychiatric report from the appointed single expert.
The orders made were generally consistent with those proposed by the mother and Independent Children’s Lawyer, but considerably different from those proposed by the father.
The appellant argued that the Federal Magistrate was in error in determining to significantly reduce the time the children spent with him, by imposing the requirement for that time to be supervised, and by allocating parental responsibility solely to the respondent.
The respondent appeared and was self-represented on the appeal. Only the Independent Children’s Lawyer engaged the arguments of the appellant.
Whilst the appellant was able to sustain some meritorious arguments, they were ultimately insufficiently persuasive to sustain the appeal.

Background facts

The parties commenced a relationship in 1999 when they were quite young.
Their three children were born in October 2000, May 2002, and May 2003 and at the time of trial were aged 9, 7, and 6 years respectively.
The parties separated in January 2006.
The mother has since remarried and borne another child.
On 2 July 2008 the first set of interim parenting orders was made between the parties, which provided in part for the children to live with the father and to spend substantial and significant time with the mother.
Some further orders were made on 27 November 2008 providing for the time that the children would spend with the mother during the then imminent summer school holidays. These orders were amended on 12 December 2008 clarifying that that the children would spend time with the mother during the first half of the school holidays.
The parenting regime created by the orders made on 2 July 2008 was consensually adjusted on 14 April 2009, to provide for the children to live for equal time with the parties on a weekly rotation. Provision was also made for the parties to have equal shared parental responsibility for the children.
Those orders prevailed until the matter came on for trial before the Federal Magistrate on 11 February 2010. At the conclusion of the evidence and submissions, his Honour pronounced interim parenting orders, for which reasons would be published later. The interim orders made on 12 February 2010 were intended to largely replicate those proposed by the Independent Children’s Lawyer. The orders allocated parental responsibility for the children solely to the mother, provided for the children to live with the mother, and required the children to spend time with the father each week under supervised conditions at a contact centre.
The appellant filed his Notice of Appeal on 12 March 2010.
On 18 March 2010 the Federal Magistrate published reasons and simultaneously made fresh interim orders, discharging the orders made some weeks earlier on 12 February 2010. It is acknowledged by the appellant that there is no material discrepancy between the two sets of orders, and neither the respondent nor Independent Children’s Lawyer challenged that proposition.
Accordingly, it is common ground that the orders which are the subject of the appeal are those made on 18 March 2010 rather than those made on 12 February 2010.
The appellant filed an Application in an Appeal on 24 May 2010 seeking an extension of time within which to file a fresh appeal. With the consent of the respondent and Independent Children’s Lawyer, the requisite leave was granted on 4 June 2010. Pursuant to the grant of leave, the appellant filed a fresh Notice of Appeal on 10 June 2010.

Reasons of the Federal Magistrate

The Federal Magistrate formed a view on the evidence that the children “were at immediate risk of abuse, neglect, or family violence”, which warranted his Honour making urgent orders radically restructuring the parenting regime that had hitherto existed. Although articulated in that manner in his Honour’s reasons, it is apparent from the transcript that his Honour was more precisely concerned about the need to protect the children from physical or psychological harm that would arise from them being exposed or subjected to abuse, neglect or family violence.
It was intended by his Honour that the orders be made as an interim measure only, pending the preparation of a psychiatric report that was expected would offer further insight into the risk considered posed by the father to the children. The Federal Magistrate expressly rejected the proposals of the mother and Independent Children’s Lawyer that he should make final orders. Both proposals involved the father’s time with the children being supervised for finite periods (two months on the Independent Children’s Lawyer’s proposal and six months on the mother’s proposal).
Although all orders were styled as interim orders, the comments of his Honour at the conclusion of the trial clearly revealed that it was not contemplated by his Honour that there would be any change to the order that the children live with the mother. The appellant conceded in oral submissions that, in reality, the orders were likely to be final, save for those relating to the nature of the children’s interaction with the father. The clear imputation is that the final form of the orders pertaining to the time spent by the children with the father will be dictated by the contents of the psychiatric report ordered, and the success of the therapy that will be undertaken by the mother and the children with their counsellor, Mr L.
It is apparent that, in reaching those conclusions, his Honour had regard to several aspects of the evidence which his Honour considered pivotal. He said in the reasons:
39.While not discounting all of the considerations against the evidence, some issues particularly stand out in this matter, being:
a)The alignment of the oldest child [T] with the father;
b)The father’s insistence that the children have Asperger’s disorder or were verging on having such;
c)The father’s claim of having Asperger’s disorder, his functioning, communication and cooperation in relation to his parenting;
d)The father not abiding by parenting plans and orders;
e)The father’s self-harming events; and
f)The father’s view that he is the only parent capable of providing the children with proper parenting.
Each of those key aspects of the evidence was intrinsically adverse to the appellant.
His Honour was conscious of the provisions within Part VII of the Family Law Act 1975 (Cth) (“the Act”) which he was bound to apply. His Honour correctly recited a selection of them, and acknowledged that the evidence was germane to numerous statutory considerations, which he would, and did, parenthetically identify where appropriate.
As has already been observed, his Honour was ultimately concerned with the need to protect the children from the physical or psychological harm they may suffer through exposure or subjection to abuse, neglect or family violence. That was the sole stated reason for the making of immediate interim orders before publication of his Honour’s reasons.
As part of the reasoning process in reaching that determination, his Honour found that the appellant “influence[d]” the eldest child and “wilfully undermine[d] the mother’s duty to care for and control” that child. In his Honour’s view, such conduct of the father amounted to “abuse or neglect” from which the child needed protection, and was an apt consideration under s 60CC(2)(b). His Honour was expressly concerned by the risk of psychological harm posed to the children by the father’s alignment of them, but particularly the eldest child, which his Honour regarded as “controlling”.
The Federal Magistrate was also concerned by the evidence elucidating the father’s history of unstable psychological mood, characterised by several past episodes of actual or feigned suicide attempts. Inferentially, his Honour was troubled by the risk of physical harm the father posed to the children in the face of an order that the children should live with the mother, contrary to the wishes of the father.
In the course of the reasons, his Honour also had cause to determine an issue of family violence that arose between the parties. His Honour concluded that an incident of family violence had occurred, and attributed fault for that incident solely to the appellant.
His Honour also found that the paternal grandparents had exerted an influence within the marriage that was unhelpful, which held implications for the allocation of parental responsibility.
When dealing with the allocation of parental responsibility, his Honour found that the presumption of equal shared parental responsibility did not apply because of family violence perpetrated by the father, which outcome was then necessarily dictated by s 61DA(2). His Honour was fortified in not applying the presumption because his Honour alternatively found that the evidence would rebut the presumption, which outcome would have necessarily been dictated by s 61DA(4).
Given that equal shared parental responsibility was not allocated to the parties, his Honour correctly recognised that there was no obligation to consider the alternate residential outcomes prescribed by s 65DAA. His Honour was then at large to make such orders as would reflect the children’s best interests.
For the reasons given, his Honour considered that the children’s best interests were met, at least temporarily, by ensuring that they lived with the mother and spent time with the father only under supervised conditions.

Grounds of Appeal

The appellant challenged the orders made by the Federal Magistrate on three discrete grounds. The appellant argued his case by dealing with the first two ground together and the third ground separately. It is convenient to address the grounds in the same way.

Ground 1 - The learned Magistrate erred in finding that it was in the best
interests of the children for the father's time with the children to be supervised.

Ground 2 - The learned Magistrate erred in finding that it was in the best
interests of the children to significantly reduce the time they spent with the
father.

The appellant contended that the Federal Magistrate erred in the manner alleged, firstly by acting upon an incorrect principle, and secondly, by attributing weight to various parts of the evidence incorrectly.
The first argument advanced by the appellant is neatly encapsulated in the proposition that the Federal Magistrate incorrectly equated the finding of the appellant’s alignment of the eldest child as “abuse or neglect” of the type contemplated by s 60CC(2)(b) as a primary consideration influencing the Court’s determination about the child’s best interests. There can be little doubt that the appellant is correct. His Honour’s conclusion could hardly be clearer.
Although it was obviously open to his Honour to conclude that the father’s alignment of the eldest child was abusive to that child, the species of that abuse was emotional not physical.
The term “abuse” is defined in the Act (s 4(1)) as:
... in relation to a child, means:
a) an assault, including a sexual assault, of the child which is an offence under a law, written or unwritten, in force in the State or Territory in which the act constituting the assault occurs; or
b) a person involving the child in a sexual activity with that person or another person in which the child is used, directly or indirectly, as a sexual object by the first-mentioned person or the other person, and where there is unequal power in the relationship between the child and the first-mentioned person.
The definition requires the child to be assaulted, in one form or another, in order to be “abused”. It is only that form of “abuse” which is embraced by s 60CC(2)(b) as a primary consideration in the determination of a child’s best interests. His Honour fell into error in considering the father’s emotional abuse of the child as a primary consideration in his deliberations.
His Honour also described the father’s conduct as potentially amounting to “neglect”, so as to fall within the province of s 60CC(2)(b) as a primary consideration.
The term “neglect” is not defined in the Act. In discerning its meaning it is permissible to resort to the Explanatory Memorandum relating to the Bill which preceded the enactment of s 60CC(2)(b) within the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (see s 15AB of the Acts Interpretation Act 1901 (Cth)). The Explanatory Memorandum provided, at paragraph 37:
The term ‘neglect’, will have a similar meaning to its use in State and Territory child protection legislation. It is intended to be limited to situations where a lack of reasonable care is likely to cause unnecessary suffering or injury to the health of the child.
The term “neglect” ought be given its ordinary meaning, which is akin to failing to afford proper care or attention. The meaning is not wide enough to encompass conduct described as alignment or influence of a child by one parent against another. His Honour fell into error concluding otherwise.
Despite the definitional errors, his Honour’s judgment was not fatally infected. Having found that the father’s conduct, at least in respect of the eldest child, was emotionally abusive or neglectful his Honour was properly entitled, and in fact obliged, to consider that aspect of the appellant’s conduct as an additional consideration under s 60CC(3) - for example under sub-sections 60CC(3)(c), (f), (i), and (m). The appellant fairly conceded that to be so in both his written and oral submissions.
The appellant submitted, correctly in our view, that the findings of the Federal Magistrate about the nature of the father’s conduct were the important issue, not the designated statutory label attached to those findings.
A portion of the Federal Magistrate’s findings in this respect can be found in the following paragraphs:
43.Both Mr [L] and the family consultant Ms [A] gave evidence that [T] is aligned with the father. My findings on the evidence of [T] stating she believed the mother to be a bad person and would go to hell; of her assaulting the mother while pregnant and stating she hoped the (unborn) baby would die; of her being used as a spy for the father in the mother’s household; that she hates the judge in the proceedings; that she did not want to see the family consultant Ms [A] and that she was uncontrollable in the mother’s household, was alarming. She is a nine-year-old child and in my opinion, displaying an alignment in support of her father is destructive of her best interests in her other relationships.
…
63.The cumulative result of these adult-spun pressures on [T] amounts to long term abuse, a concept which takes many different forms. Subjected to constant pressure, she wants to live with the father and although the younger children reported they wanted to live with the mother, a pattern is established to involve the younger children at a later stage of their lives.
…
76.The father did not relinquish his position that either himself or the children suffered from Asperger’s disorder or some disorder closely associated with it. He seemed to use his own diagnosis as an excuse for his behaviour and while that may or may not be true, it is behaviour which so affects the children that [T] is aligning herself with the father, [J] is disrupted and [U] is showing such disturbing signs of aggression he was expelled from a school.

The factual findings about the father’s alignment of the eldest child were not challenged and the appellant was impelled to concede that his Honour did not at any point stipulate that more weight was attributed to those findings simply because the findings were deemed primary rather than additional considerations. The findings were of persuasive significance in the litigation regardless of whether they were factored into his Honour’s deliberations as primary or additional considerations.
The Act does not mandate the discussion of considerations under s 60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations despite the nomenclature of sub-sections 60CC(2) and 60CC(3) (see Aldridge & Keaton (2009) FLC 93-421 at [74]; Mulvany & Lane (2009) FLC 93-404 at [84]; Champness & Hanson (2009) FLC 93-407 at [101-103]; Marsden & Winch (No. 3) [2007] FamCA 1364 at [76-78]).
The appellant draws attention to the fact that no Notice of Child Abuse or Family Violence was filed in the proceedings by either the respondent or Independent Children’s Lawyer. That may be so, but it does not affect the analysis just undertaken. If evidence of abuse or family violence is adduced at trial the Court is obliged to deal with it, irrespective of a failure by the parties to file a Notice in accordance with the Act and Family Law Rules 2004 (Cth). Conversely, if such a Notice is erroneously filed without a proper evidential foundation of either abuse or family violence, the Court is not bound to find the existence of abuse or family violence simply because the Notice was filed. Any Notice simply serves to notify the existence of an issue. The Court must always critically assess the evidence placed before it in determining the issue.
The second complaint raised by the appellant in respect of Grounds 1 and 2 is that the Federal Magistrate heeded facts that were irrelevant, reposed undeserved weight in some facts, or gave insufficient weight to other facts. Numerous examples were cited.
None of the appellant’s complaints are sustainable. All of the factual findings cited by the appellant were relevant to the ultimate parenting outcome, to some degree or other, and each of his Honour’s conclusions was open on the available evidence. The appellant failed, in both his written and oral submissions, to explain how any of the factual determinations of which he complains vitiated the exercise of discretion by the Federal Magistrate.
The fact that the Federal Magistrate placed lesser or greater weight on various parts of the evidence than the appellant would have liked is not a basis for his Honour’s judgment to be impugned (see Gronow v Gronow (1979) 144 CLR 513 at 519-520). The appellant’s argument falls far short of establishing that the weight attributed to parts of the evidence by the Federal Magistrate of itself amounted to a failure to actually exercise the discretion entrusted to his Honour (see Lovell v Lovell (1950) 81 CLR 513 at 519,533).
It is quite plain that the Federal Magistrate considered, weighed, and assessed the evidence, generally indicated the relative weight attributed to the findings of fact, and explained how those matters balanced out and justified the result. That was the onus cast upon the Federal Magistrate (see Collu & Rinaldo [2010] FamCAFC 53 at [345]) and he adequately discharged it.
The single factual matter raised by the appellant that deserves separate discussion is the finding of family violence and the attribution of fault for it to the appellant.
The appellant’s grievances about the finding of family violence are that the Federal Magistrate mistakenly asserted that the appellant had punched the respondent when the appellant admitted to only a slap, ignored the appellant’s assertion of self-defence, and blamed the appellant for the incident.
In dealing with the appellant’s submissions it is necessary to evaluate the evidence adduced on the issue.
In her affidavit evidence the respondent alleged the commission of family violence by the appellant. She was not cross examined about that evidence by either the appellant or Ms Lyons, the Independent Children’s Lawyer.
The appellant only mentioned the issue of family violence between himself and the respondent briefly and obliquely in his affidavits. He was cross examined on the issue. The following evidence is extracted from the appellant’s cross examination on 11 February 2010 (Appeal Book, Volume 4, pages 583-4) (our emphasis added):
MS LYONS:You would have read the incidents the mother puts in her material in relation to the violent incidents. Have you read those?
FATHER:Yes, I have.
MS LYONS:            Yes, and you deny all of them?
FATHER:I do. I do admit to the punching in the face. It was not a punch. [The mother] had actually---
MS LYONS:            Punching the mother in the face?
FATHER:[The mother] had punched me and it was a natural reaction and I slapped her back.
MS LYONS:            Well, you slapped her or you punched her back?
FATHER:I slapped. It was an open hand and that was it, and it was a - well, it was a defensive mechanism.
MS LYONS:            When did that occur?
FATHER:                 That was in 2005.
HIS HONOUR:         How is it a defensive mechanism if she has hit you, as you say, and you’ve slapped her back? How is that a defensive mechanism?
FATHER:Well, I don’t know how to explain that because, I mean, I didn’t wilfully try to hit her. She punched and there was a slap, almost instantaneous. I take it to be, you know, as she’s punching, because I had done a little martial arts before, it came natural. It’s not that I meant to bully her or anything like that and - - -
HIS HONOUR:         Why didn’t you step away from her is she’s punching you?
FATHER:I didn’t have the time.
In relation to that evidence, his Honour noted that the appellant admitted to slapping the respondent, and concluded that there was no proper basis for the appellant to have done so in self-defence. Later in the reasons for judgment his Honour recorded the appellant’s admission of punching the respondent, which was only one aspect of his Honour’s finding that family violence had occurred. Finding that the appellant screamed at the respondent that he would kill her and the children was another reason why his Honour found family violence established.
His Honour was correct in referring to the appellant’s admissions of punching and slapping the respondent. The appellant mentioned both. Although the appellant corrected himself by supplanting his admission of a punch with his admission of a slap, it was open to his Honour to find that the appellant’s first admission was more reliable than the second admission. In any event, nothing turns on whether the appellant punched or slapped the respondent. Whichever form of physical force was applied by the appellant, he admitted to assaulting the respondent.
The appellant implicitly asserts that his admitted assault of the respondent was excusable on grounds of self-defence. However, it was open to the Federal Magistrate to find that the appellant was not acting in self-defence. The appellant said in cross examination that he slapped the respondent as a “natural reaction”, that his reaction was “almost instantaneous” and that he did not “wilfully try to hit her”. The concept of self-defence entails advertence to the need to repel the actual or imminent attack by which the victim is then threatened, and a conscious decision to assault the assailant in order to do so. The evidence given by the appellant did not necessarily, and probably did not, fulfil that criteria.
The appellant also explicitly stated that the respondent was the instigator of that episode of violence, but the Federal Magistrate was not bound to so find. No admission was made by the respondent in her affidavits that she instigated the violence, and it was never suggested to her that she was. That allegation was made only by the appellant when explaining himself in cross examination. It was open to his Honour not to accept the appellant’s evidence on that point.
The Federal Magistrate was quite right to find that “[t]here is no excuse for any party to engage in domestic violence”, but his Honour overstated the position to observe that there could be “no excuse whatsoever for a male to hit a female”.
No challenge was made by the appellant to the Federal Magistrate’s finding that the appellant’s screaming at the respondent that he would kill her and the children was an important fact, which may of itself prove family violence.
It was clearly open to his Honour to find proven the commission of family violence by the appellant.
The Federal Magistrate’s decision is not “plainly wrong”, as the appellant submitted. We are not satisfied that Grounds 1 or 2 are made out.

Ground 3 - The learned Magistrate erred in ordering that the mother have sole parental responsibility for the children

The appellant contended that the Federal Magistrate incorrectly applied the provisions of s 61DA to the evidence, which caused the erroneous displacement of the presumption of equal shared parental responsibility.
The appellant submitted that the Federal Magistrate found that the presumption of equal shared parental responsibility did not apply pursuant to s 61DA(2), rather than finding the presumption rebutted by the evidence pursuant to s 61DA(4). It was further contended that the Federal Magistrate did not make any finding under s 61DA(4). The submission is misconceived.
The Federal Magistrate certainly found the occurrence of past family violence established, which would necessarily mean that the presumption of equal shared parental responsibility did not apply by reason of the provisions of s 61DA(2). However, his Honour noted that the presumption should not easily be shifted, and acknowledged that the presumption could be rebutted by evidence satisfying his Honour that an order for equal shared parental responsibility would not be in the children’s best interests. His Honour then expressly found that some aspects of the evidence did satisfy his Honour that the presumption should be rebutted. It is obvious that his Honour was referring to rebuttal of the presumption pursuant to s 61DA(4). There is no other plausible explanation, given his Honour’s generic reference to only s 61DA at that point in the judgment.
The appellant’s contention appears to be that his Honour relied upon an erroneous finding of family violence to then improperly find that the presumption of equal shared parental responsibility did not apply, which error was not cured by any alternate valid finding about rebuttal of the presumption.
The submission is flawed because the finding of family violence was open to the Federal Magistrate, for reasons already explained. In light of that finding, the presumption of equal shared parental responsibility did not apply pursuant to s 61DA(2). In any case, the Federal Magistrate did make an express finding that the evidence rebutted the presumption of equal shared parental responsibility under s 61DA(4).
Consequently we are of the view that Ground 3 is not made out.

Orders and Costs

The appeal should be dismissed.
The respondent was self-represented and conceded that she did not claim costs against the appellant in the event of dismissal of the appeal.
The Independent Children’s Lawyer did seek an order for costs against the appellant if the appeal failed.
The application for costs made by the Independent Children’s Lawyer is rejected, essentially for two reasons. The appellant was vindicated about some errors made by the Federal Magistrate, albeit that the errors did not justify appellate intervention, and the financial means of the appellant were submitted to be meagre, about which there was apparently no issue.

I certify that the preceding seventy three (73) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Thackray & Austin JJ) delivered on 11 January 2011.

Associate:

Date: 11 January 2011