STRAHAN & LIDDY
[2015] FamCAFC 95
•19 May 2015
FAMILY COURT OF AUSTRALIA
| STRAHAN & LIDDY | [2015] FamCAFC 95 |
| FAMILY LAW – APPEAL – ADEQUACY OF REASONS – Where the orders substantially changed the living arrangements of a young child – Finding that equal time was not reasonably practicable – Finding that the child should not have substantial and significant time – Where orders provide the child lives with father six nights in each 14 – Where orders comprise substantial and significant time – Where no explanation why equal time was not reasonably practicable but the orders made were – Where s 65DAA(2) required consideration of the impact on the child of ordering substantial and significant time and whether those arrangements were reasonably practicable – Where it was not open to make the order without satisfying the statutory criteria established in s 65DAA(2) – Where the evidence did not support the orders – Appeal allowed. FAMILY LAW – APPEAL – Costs – Where the respondent was entitled to resist the appeal but it was also incumbent to consider the strength of the appeal – Costs ordered. |
| Family Law Act 1975 (Cth): ss 60CC, 65DAA(1), 65DAA(2), 65DAA(3), 65DAA(5) Federal Proceedings (Costs) Act 1981 (Cth): s 8 |
| AMS v AIF (1999) 199 CLR 160 Bennett & Bennett (1991) FLC 92-191 Goode & Goode (2006) FLC 93-286 Marvel v Marvel (2010) 240 FLR 367 MRR v GR (2010) 240 CLR 461 SCVG & KLD (2014) FLC 93-582 |
| APPELLANT: | Ms Strahan |
| RESPONDENT: | Mr Liddy |
| FILE NUMBER: | SYC | 6190 | of | 2014 |
| APPEAL NUMBER: | EA | 164 | of | 2014 |
| DATE DELIVERED: | 19 May 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 19 May 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 19 November 2014 |
| LOWER COURT MNC: | [2014] FCCA 3044 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Petrie |
| SOLICITOR FOR THE APPELLANT: | Court Legal |
| COUNSEL FOR THE RESPONDENT: | Ms Christie |
| SOLICITOR FOR THE RESPONDENT: | Watts McCray |
Orders
The Application in an Appeal filed on 17 April 2015 be dismissed.
The appeal be allowed in part.
Order 4 of the orders dated 19 November 2014 be set aside.
Remit the proceedings for rehearing by a judge other than Judge Scarlett.
The respondent father pay the appellant mother’s costs of and incidental to the appeal within one (1) month of the quantum of costs being agreed or assessed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Strahan & Liddy has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 164 of 2014
File Number: SYC 6190 of 2014
| Ms Strahan |
Appellant
And
| Mr Liddy |
Respondent
REASONS FOR JUDGMENT
These reasons were delivered orally.
By an Amended Notice of Appeal filed on 4 February 2015, Ms Strahan (“the mother”) appeals against interim parenting orders made by Judge Scarlett on 19 November 2014 in relation to the parties’ five year old daughter, X (“the child”). His Honour’s orders provide that the child lives with the mother and spends time with Mr Liddy, who is her father (“the father”), during school term six nights in each 14 spread over two periods and for one week in each school holidays other than during the long summer holidays.
His Honour’s orders closely accord with the father’s application and stand in stark contrast with the mother’s claim that the child’s time with the father should, pending the receipt of expert evidence, be supervised by a professional supervisor for a period of four hours twice a week.
The mother identified two concerns which it was argued justified a conservative approach to the circumstances in which the child would spend with the father. One arose from an incident in September 2014 when the 12 year old son of the father’s brother showed her his penis. The father was present in his parent’s house when this incident took place and according to the mother, supervision was necessary to protect the child from the future risk of sexually inappropriate behaviour.
Her second concern arose from what the mother described as the father’s obsession with germs and hygiene and how it impacted on his parenting style. With these matters considered in the context of recent significant changes in the child’s life (her parents’ separation, a new home and new sister) and with due deference to the mother’s anxiety about the father, it was argued that supervised time with the father was in the child’s best interests.
No challenge was made by the father that the recent changes in the child’s life were significant or to the mother’s contention that from birth, she had been primarily responsible for the child’s care. However, the father said he could be trusted to not bring the child into contact with his nephew and to keep her safe. He denied having an obsessive compulsion disorder and argued there was no basis upon which his Honour could find he posed an unacceptable risk.
In support of his application to have at least substantial and significant time with the child, reference was made to the fact that the mother had recently given birth to the child’s sister and, because the mother had a depressive illness, it would be difficult for her to care for the child and a newborn baby. It was submitted on that basis “[i]t must follow that it would be in [the child’s] best interests to have substantial and significant time with the father” (counsel for the father’s outline of case document [17]).
As the nature of the orders would suggest it was not accepted that unsupervised time with the father would expose the child to an unacceptable risk.
Interim orders were also made for the parties to have equal shared parental responsibility about major long term issues for the child and sole parental responsibility for other aspects of the child’s care, welfare and development that might arise whilst the child is with that parent. The mother also appeals in relation to that latter order.
The mother’s application to adduce further evidence in the appeal filed on 17 April 2015, namely her affidavit filed the same day, must also be considered. That evidence is relied upon in the event that the appeal is allowed and is said to be persuasive of the need for this court to re-exercise his Honour’s discretion and to establish that to simply remit the matter for rehearing without disturbing the operative orders would be inimical to the interests of both the child and her sister.
In the event the court is persuaded to that course, it is the mother’s contention that the child should spend three nights in 14 with the father, being two nights in one week and one in the following week unsupervised.
The father seeks to uphold the orders and says the appeal should be dismissed. He takes the same approach to the mother’s application to adduce further evidence. On a re-exercise, he would seek to present further evidence and argues that parties’ evidence would more appropriately be dealt with at a remitted interim hearing by a judge other than his Honour.
So as to provide context to the appeal, reference needs to be made to some key and apparently uncontroversial facts.
The orders under appeal
The orders under appeal are set out below:
(2)Each party is to have sole parental responsibility for making decisions concerning other aspects of the care, welfare and development of the child on a day to day basis during the periods that the child is living with each parent.
…
(4) [The child] is to spend time with the Father:
(a)Until the child commences school at the commencement of the first School Term:
ii)From immediately after pre-school on Thursday until the commencement of pre-school on Monday commencing on Thursday 20 November 2014 and each alternate week thereafter;
iii)From immediately after pre-school on Wednesday 26 November 2014 until the commencement of pre-school on the following Friday 28 November 2014 and each alternate week thereafter;
iv)From 9:00 am on Christmas Eve 24 December until 12:00 noon on Christmas Day 25 December 2014.
(b) Once the child commences school at the beginning of the first School term in 2015:
v)From immediately after school on Thursday until the commencement of school on the following Monday morning commencing on the first Thursday after the commencement of the school term and each alternate week thereafter;
vi)From immediately after school on the first Wednesday immediately after the first weekend of the School Term until the commencement of school on the following Friday morning and each alternate week thereafter;
vii)For the first week of the Autumn, Winter and Spring school holiday periods commencing at 9:00 am on the first Saturday of the school holiday period and concluding at 5:00 pm on the following Saturday;
viii)On the Father’s birthday from immediately after school until 6:00 pm;
ix)On the weekend that includes Fathers’ Day in each year; and
x)From immediately after school until 6:00 pm on the child’s birthday.
Background Facts
The father was born in 1972 in City S in Asia and, with his parents and brother, migrated to Australia in 1989. He works in a medical field and practises at various hospitals in Northern and Western Sydney.
The mother was born in 1979 in the same Asian country. She is a professional who, after the parties met in Sydney in 2008, migrated to Australia. Her mother, step-father and brother also live in Australia.
The parties married in March 2009.
The child was born in 2009. Since then, the mother has not taken paid employment and has devoted her time to being a full-time mother and running the family home.
For eight months in 2013, the mother and the child were in Asia where the mother’s mother underwent medical treatment. The father visited them monthly.
In 2014, the child attended preschool (transition) five days per week at a school where she was enrolled to commence her formal education in 2015.
The incident involving the father’s nephew occurred on 6 September 2014. It needs to be understood there is no dispute that the child’s cousin showed her his penis or that she was in her father care when, albeit out of his sight, the incident occurred. Where the parties’ accounts differ is whether in their individual conversations with the child she said her cousin also asked her to show him her vagina. According to the mother, the child said he did but when the father raised the incident with the child, she said he did not. Otherwise, the parties disagree about the substance of telephone conversations that took place with the father’s brother and whether the father’s brother was abusive to the mother. Whatever the content of those conversations might have been, it is uncontentious that the mother was stressed by what had taken place and two days later, at 31 weeks gestation, she went into pre-term labour and was admitted to hospital.
While the mother was in hospital, with the assistance of hospital social workers, a notification was made to the Joint Investigation Response Team (“JIRT”) about the incident with the father’s nephew. JIRT investigated the notification and took no further action.
When the mother was discharged from hospital on 13 September 2014 she moved to her mother’s home with the child.
With little success the father made many calls to the mother to see and speak to the child. The mother agreed to the child spending time with the father in a coffee shop on 16 September 2014 but otherwise refused his requests for contact unless it was supervised by supervision agency.
By email dated 24 September 2014, the mother apologised to the father for keeping their daughter from him and explained she did so because she had been:
…advised by the police officer to keep [the child] away from you and your family and to take her with me to my parents’ house until the police investigation is properly done … You need to trust me on this … After the JIRT interview is done, I’m finally very relieved.
There is evidence from JIRT which indicates they said no such thing.
In any event, on the same day, the father was notified by the mother’s solicitors that she had decided to separate.
Notwithstanding that the JIRT investigation concluded that the father does not pose a risk to the child, the mother continued to insist on supervision. Although the father did not agree supervision was necessary, so that he could at least see his daughter, he nominated a professional colleague and mutual friend to supervise. When the mother did not agree, the father capitulated and agreed that his time with the child be supervised by a supervision agency. Supervised time commenced on 23 October 2014. There were four occasions when contact was supervised by the agency.
The mother commenced proceedings in the Federal Circuit Court on
2 October 2014.
On 31 October 2014, interim orders were made which enabled the child to spend time with the father for five and a half hours each Sunday supervised by his original proposed supervisor.
In the meantime and without discussing it with the father, the mother enrolled the child in a preschool closer to where she now lived.
The mother and child moved into different accommodation on
7 November 2014.
The child’s sister, W, was born in 2014.
The parties’ competing applications for interim parenting and other orders were heard on 12 November 2014. Both parties were represented by counsel and, having reserved his decision, on 19 November 2014, but without providing any reasons, his Honour made the orders under appeal.
On 10 December 2014, the mother lodged a Notice of Appeal against Orders 2 and 4 of the orders dated 19 November 2014.
On 19 January 2015, his Honour published his reasons for the orders pronounced on 19 November 2014.
On 18 February 2015 and pursuant to s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”), the Chief Justice issued a direction that the appeal be determined by a single judge.
Grounds of appeal
By her Amended Notice of Appeal, the mother abandoned grounds 1-3 inclusive of her Notice of Appeal filed on 10 December 2014. The remaining grounds challenge that aspect of the orders which deal with the amount of time the child has with the father and not his Honour’s determination that the mother’s case for supervision was not established.
Are his Honour’s reasons sufficient?
By ground 4 it is contended that his Honour’s reasons “…are inadequate in that his Honour failed to reveal sufficiently why he concluded that the orders he made were in the child’s best interests”. As counsel for the mother submitted, it is well settled “…that judicial reasons must sufficiently reveal to litigants and appellate courts why a case was decided in the way it was” (Bennett & Bennett (1991) FLC 92-191). Although this principle is necessarily constrained by the circumscribed nature of interim proceedings, the requirement of adequate reasons remains (Goode & Goode (2006) FLC 93-286; Marvel v Marvel (2010) 240 FLR 367). However, it is useful to recall that the necessary content of reasons for judgment depends upon the context in which they are given. Thus, factual and legal concessions, if accepted by the court, may conclusively deal with factors that the Act requires be considered and, as a consequence of which, the judgment needs to address only the contentious factual and legal matters which remain outstanding (SCVG & KLD (2014) FLC 93-582).
After his Honour set out the background facts to which reference has already been made, he identified the legislative provisions which govern the determination of interim parenting proceedings. Under the heading “Relevant matters in section 60CC of the Family Law Act”, at [58], his Honour said:
The issues in this matter really concern the two primary considerations in subsection 60CC(2), being on the one hand the benefit to the child of having a meaningful relationship with both of her parents and, on the other, the need to protect her from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. The Court is required by subsection 60CC(2A) to give greater weight to the latter consideration.
His Honour went on, at [59], to find as follows:
First of all, there does not appear to be any evidence that shows that the child would not benefit from having a meaningful relationship with either parent. The Mother has been the child’s primary caregiver since she was born. The Father has been involved in a busy schedule as [a medical specialist], but it is his case that he has reduced his working hours in order to spend more time with his daughter. He also states that he has been involved in the child’s life as a loving and committed father since she was a baby.
Between [60] and [68], the risk issues to which reference has already been made were discussed in relation to which it was concluded that the “…evidence is not nearly strong enough…” [65] to warrant supervision and thus the father’s time with the child should be normalised [68]. His Honour was satisfied the evidence did not support the mother’s case to restrict or supervise the child’s time with the father [60], which observation he repeated at [67].
The presumption of equal shared parental responsibility applied and thus,
his Honour turned his attention to whether it was in the child’s best interests and reasonably practicable for her to spend equal time with each of her parents. It is appropriate to observe at this juncture, that although the father applied for an order that the child lives week about, at the commencement of the hearing before his Honour, that application was abandoned in favour of the six nights to eight nights arrangement which was ordered.
Because his Honour’s reasons concerning the amount of time the child would have with each of her parents are brief, they can be set out in full. At [76-78], his Honour said:
76.In my view, the Father’s working hours as [a medical specialist], even though he has reduced those hours somewhat, mean that it is not reasonably practicable for this child to spend equal time with each of her parents. It would appear that substantial and significant time with her father may be more practicable, but I am not of the view that the orders to be made at this stage go as far as meeting the definition in subsection 65DAA(3).
…
77.The parties have only recently separated and emotions are likely to be raw. The Mother has only recently given birth to the parties’ second child, and no orders have yet been sought in respect of that child. Clearly, the Mother will not be able to go out into the workforce at this stage, and she will need to spend time at home looking after the new baby.
78.The parties are to have equal shared parental responsibility until further order. The child is to spend a reasonable amount of time with her father, and there is no need for that time to be supervised.
It can thus be seen that His Honour’s reasoning process was as follows:
·The child has a lovely relationship with the father;
·He does not pose a risk to the child;
·The child’s relationship with the father should be normalised;
·Equal time would not be reasonably practicable;
·Nor would substantial and significant time, and
·Thus the child should have reasonable time with the father – being six nights per fortnight plus during school holidays and on special occasions as set out in the orders.
No challenge is made to the finding that it was not reasonably practicable for the child to spend equal time with the father and the mother. However, because of the amount of time which the father sought and was ordered, that finding is factually significant and, if the orders are orders to which s 65DAA(2) of the Act applies, it is also of legal significance. This is a matter to which I will return.
Contrary to the submission by counsel for the father that the only issue raised by the mother about the child’s time was whether it should be supervised, the issue about what was an appropriate amount of time was clearly raised. Reference needs only to be made to the following submissions to establish the point.
MOTHER’S COUNSEL: We say at this stage, without further evidence of an expert and without having the benefit of a CDC conference, having – making a determination for the child to spend substantial and significant time is premature. And especially the application that the father is seeking for week-about time, we say it’s certainly – I will withdraw the submission about week-about time.
I understand that it is an equal time scenario, but not a week-about. I do apologise. We say that having an equal time arrangement where you have a situation where the child has been primarily cared for by the mother and in a situation where there has been such a huge number of significant changes in the mother and [the child’s] life, that at this stage a continuation of the regime should continue.
(Transcript, page 17 line 40 to page 18 line 5)It is thus established that the amount of time the child would have with the father was one of the central issues raised before his Honour as a consequence of which it was incumbent on him to provide at least a basic explanation of the fundamental reasons for his conclusion that why, if an equal time arrangement was not reasonably practicable, a six nights to eight nights arrangement was in the child’s best interests. The point being equal time was rejected yet he went on to make an order for only one night less.
His Honour’s failure to provide that explanation constitutes an error of law.
Are the reasons inconsistent with the orders?
By ground 5, it is argued that to the extent his Honour did reveal a process of reasoning, his reasons are inconsistent with the orders he ultimately made.
Section 65DAA(2) is the provision which deals with substantial and significant time, and, like s 65DAA(1) (which is concerned with an order for equal time), requires the court to determine whether an outcome of that type is reasonably practicable. As the High Court said in MRR v GR (2010) 240 CLR 461, a finding in favour of reasonable practicability qualifies the power to make orders of that type.
It can be seen that, at [76], his Honour disavowed that an order for substantial and significant time was reasonably practicable and therefore an order for substantial and significant time would not be in the child’s best interests. The question that now arises is whether his Honour, nonetheless, went on to make an order for substantial and significant time. If he did, the argument in relation to inconsistency is established.
It is helpful at this stage if ss 65DAA(3) and (5) are set out:
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
…
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Notwithstanding his Honour’s remarks at [76], it is abundantly clear that Order 4 is an order for substantial and significant time and ss 65DAA(3) and 65DAA(5) were thus engaged. That his Honour said otherwise cannot neutralise the necessity for there to be a proper application of the Act. It follows that his Honour was obliged to consider the impact on the child of the arrangements he would go on to order and, having done so, to find that those arrangements were reasonably practicable. By not doing so, his Honour failed to satisfy a statutory condition that must be fulfilled before the court has power to make a parenting order of that kind and thus it was not open to
his Honour to make Order 4: MRR v GR at [13] and [21].
It also follows that by making an order for substantial and significant time,
his Honour made orders which are inconsistent with his reasons.
This ground is also made out.
Is the decision unsupported by the evidence?
By ground 6, it is asserted:
On such findings of fact as His Honour was able to make the orders that His Honour made that the child spend almost equal time with the father was plainly wrong in circumstances when the evidence establishes that the mother has been the child’s primary carer, that the father sought an order that the child be in the mother’s primary care, that the father had never assumed care of the child on the basis as substantial as the orders provide and that the father’s care of the child was dependent upon the assistance of persons (his elderly parents) who also had never previously assumed the care of the child.
The essential challenge raised by ground 6 is that when the orders are considered against his Honour’s findings and the evidence which was before him, they are “…at best unsupported by the evidence, at worst contrary to the evidence, and plainly wrong” (AMS v AIF (1999) 199 CLR 160).
Although it involves a degree of repetition, the agreed or unchallenged evidence established that:
·the child had undergone recent significant disruptions to her life;
·the mother was the child’s primary carer from birth;
·the father enjoyed a lovely relationship with the child and was involved in her care to the extent his busy work schedule permitted;
·other than for a few hours at a time the father had never cared for the child in the absence of the mother;
·put differently the child had never spent time with the father away from the mother overnight,
·the child had spent eight months overseas with the mother without compromising her relationship with her father;
·prior to separation the father left home before the child awoke and returned at about 6.00 pm. At an unspecified time but before the child turned four and, it is inferred, prior to her spending eight months in Asia, the father spent time with their daughter “on most Tuesdays and Thursdays” in the company of the mother;
·if the child was with him, the father would not now be on call and the possibility existed of him having days when he would not need to work and he could thus take her to and from school. If he was unavailable his parents would do so;
·the mother was able to continue to care for the child full-time;
·the mother had the full-time care of the parties’ newly born daughter;
·the mother had suffered a relapse of major depressive illness precipitated by severe pycho-social stresses: in her marital relationship, relationship with her in-laws, as well as the incident between the child and the father’s nephew; (Dr Y’s report, p 7) and
·under treatment by Dr Y, the mother had gained a significant improvement in her mood and her levels of anxiety had decreased. Dr Y was satisfied that the mother was capable of meeting the children’s social, developmental and emotional requirements.
When those factors are considered in the context of the applicable statutory provisions, it is difficult to avoid the conclusion that the orders were unsupported by the evidence.
It is not accepted that this ground is reliant upon findings of fact that were not open to the court or that the ground is presented as though “uncontested primary care ipso facto entitles the appellant to primary care post separation” (Respondent’s Summary of Argument, p 4 at [15]). Albeit it was the father’s case that the mother should have the child’s primary care. Nor is it accepted that merely because the child enjoys a lovely relationship with the father and he is more available to care for her now than he was previously, there existed a sufficient evidentiary foundation for his Honour’s orders.
Ground 6 is made out.
Failure to supervise the child
By ground 7, it is asserted:
On such findings of fact as His Honour was able to make the orders that His Honour made failed to give any or any appropriate weight to the father’s failure to supervise the child “closely enough” when the child was in the presence of the cousin or to adequately consider the implications of that evidence and of the orders that His Honour made in circumstances when the cousin, on the father’s own evidence, was likely to regularly come into contact with the child.
The brief submissions made in support of this ground merely restated the challenge. Ground 7 in its terms it is not persuasive of error.
Separation of the siblings
By ground 8, it is contended that his Honour failed to have any or adequate regard for the child’s right to have a relationship with her sister.
There is no doubt that the children’s relationships with one another required consideration. Reference need only be made to s 65DAA(5)(d) and s 60CC(3)(d) to establish the point. Yet it is apparent the effect of the child being so significantly separated from her sister was not addressed.
This ground is made out.
Conclusion
As no argument was addressed to the appeal in relation to Order 2, counsel for the father agreed that aspect of the appeal could be dismissed. Thus the appeal will be allowed only in relation to Order 4 which will be set aside. Given that the effect of Order 4 being set aside is that there will be no provision for the child to spend time with the father, the question of whether the matter is remitted for rehearing or this court re-exercises his Honour’s discretion requires consideration.
Counsel appearing on the appeal agreed that given the subject matter of the appeal and the period of time that has passed since the orders, the question of what orders qua the child’s time with the father would be in her best interests requires more up to date evidence. Where they disagreed is whether, as was submitted by counsel for the mother, that evidence should be placed before this court or, as was submitted by counsel for the father, the matter is remitted for rehearing and dealt with at first instance.
The obvious advantage of the approach preferred by the mother is the potential to bring the matter to conclusion with little additional expense. Weighing against that approach is the complicating factor of an insufficiency of reasons which potentially complicates any re-exercise of his Honour’s discretion. Of equal importance, if a party is unhappy with the outcome of a re-exercise, rather being able to appeal as of right the only avenue of appeal would be by a grant of special leave to appeal in the High Court. Those factors weigh against a re-exercise and the matter will be remitted for re-hearing by a different judge. The application to adduce further evidence will therefore be dismissed.
It is requested that the Federal Circuit Court gives the rehearing as prompt a listing as possible.
COSTS
In the event the appeal was successful an application was made by the mother that the father pays her costs. She did so on the basis the father had been entirely unsuccessful and her somewhat difficult financial circumstances.
In the event the appeal failed, the father sought that the mother pays his costs. He opposed an order for costs against him and argued he was entitled to resist the mother’s appeal and she had not fully disclosed her financial circumstances.
The mother’s appeal has been substantially successful and although the father was entitled to seek to uphold the orders it was also incumbent on him to carefully consider the apparent strength of the appeal. In addition, when the factors taken into account in ground 6 are considered in combination with the fact that his Honour made very similar orders to those which the father sought, there are circumstances justifying an order in the mother’s favour and make it is appropriate for such an order to be made.
Although the matter will require a rehearing, I am not persuaded I should make an order for the parties to receive certificates pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth). This is because there is little doubt that they both contributed to the difficulties apparent in his Honour’s reasons.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 19 May 2015.
Associate:
Date: 21 May 2015
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