TOKELY & TOKELY
[2014] FamCAFC 137
•29 July 2014
FAMILY COURT OF AUSTRALIA
| TOKELY & TOKELY | [2014] FamCAFC 137 |
| FAMILY LAW – APPEAL – RECOVERY ORDER – Where the child was taken into the father’s care and not returned – Where the mother’s evidence was that, until removal, she had been the primary carer of the child – Where the mother sought orders on an urgent basis returning the child to her – Where the trial judge acknowledged that the matter was urgent – Where the trial judge made orders adjourning the matter for 4 months to allow the father to file additional evidence and to allow the matter to be heard in a circuit court closer to where the parties lived – Whether there was a denial of procedural fairness by failing to properly engage in the issues by determining the recovery order application or failing to set the recovery order application down for hearing in a suitable time frame – Where the evidence suggested that an urgent hearing was required – Where the length of the adjournment and the listing of the matter for mention as opposed to hearing did not meet the urgency of the situation – Where it was accepted that a lengthy adjournment was tantamount to a refusal of the application on an interim basis – Where the trial judge did not determine whether the child’s best interests were to be served by remaining with the father – HELD – Appeal allowed. |
| Family Law Act 1975 (Cth): ss 60CC, 67Q, 67U, 67V |
| Ghorbani & Saeed [2013] FamCAFC 167 |
| APPELLANT: | Ms Tokely |
| RESPONDENT: | Mr Tokely |
| FILE NUMBER: | PAC | 2634 | of | 2014 |
| APPEAL NUMBER: | EA | 83 | of | 2014 |
| DATE DELIVERED: | 29 July 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Thackray, Ryan & Aldridge JJ |
| HEARING DATE: | 29 July 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | Orders made on 18 June 2014 |
| LOWER COURT MNC: | Not applicable |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Cantrell |
| SOLICITOR FOR THE APPELLANT: | Aboriginal Legal Service |
| FOR THE RESPONDENT: | Mr Tokely in person |
Orders
The Appeal is allowed.
Orders 2 and 3 made by Judge Halligan on 18 June 2014 are set aside.
The mother’s interim application filed on 4 June 2014 be heard as a matter of urgency by a Judge of the Federal Circuit Court of Australia, other than Judge Halligan.
Pursuant to s 68L(2) of the Family Law Act 1975 (Cth), the interests of the child … be independently represented by a lawyer and it is requested Legal Aid New South Wales, Sydney make arrangements as soon as practicable to secure that independent representation of the child's interests.
Within seven (7) days of notification of such appointment each party provide to the Independent Children’s Lawyer copies of all relevant documents relied upon by that party.
There be no order as to the costs of the appeal.
The Court grants to the appellant mother a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in relation to the appeal.
The Court grants to the respondent father a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by him in relation to the appeal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym
Tokely & Tokely has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 83 of 2014
File Number: PAC 2634 of 2014
| Ms Tokely |
Appellant
And
| Mr Tokely |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Aldridge j
Ms Tokely (“the mother”) sought urgent orders from the Federal Circuit Court at Parramatta for the recovery of her daughter, L born in 2010 (“the child”), from Mr Tokely her father (“the father”). She sought a recovery order pursuant to s 67U of the Family Law Act 1975 (Cth) (“the Act”).
The Notice of Appeal was filed on 15 July 2014 and is being heard 14 days later. The parties are to be commended for being able to proceed on such short notice and for filing such comprehensive written submissions.
When the proceedings came before Judge Halligan at Parramatta on 18 June 2014 his Honour ordered:
1.The father to file and serve a response and affidavit evidence within 21 days.
2.The venue is changed to [Town C].
3.The proceedings are listed for mention at 9.30am on 30 September 2014 in [Town C].
The mother now appeals from the orders of Judge Halligan asserting a lack of procedural fairness, a failure to set the recovery application down for hearing in a suitable time, failure to properly consider the best interests of the child and failure to give adequate reasons for the course he adopted.
At the time the matter was before the trial judge the evidence consisted solely of two affidavits sworn by the mother. The following is taken from the affidavits and thus some aspects of the chronology may be controversial.
The mother has two children. The child L is the child of the parties. The mother also has another child B. The child B has been diagnosed with having developmental delays and has behavioural challenges. The mother does not know who is the father of B but it is not the father of L.
The father is currently 35 years of age.
The parties commenced their relationship in October 2008 and started living together in about Christmas of that year. Although the parties separated in about May 2013, they continued to live together until they ceased cohabiting on or about 28 February 2014.
The mother’s evidence was that she was the primary caregiver to both L and B and they remained in her full time care when the parties separated. She said that from March 2014 L had spent some time with the father only for a couple of hours on some weekends and for one overnight occasion. This aspect of her evidence is controversial.
The mother said that in the afternoon of 31 May 2014, on a day when the father was spending time with the child, she received the following text:
… “What the fuck have you done. Just talked to [father’s ex-girlfriend] about what her problem is and she told me all this shit that’s been going on at school. She is pissed off that she had to be interrogated by child protection for 2 hrs and you calling her names and shit. All this time I was away why we’re you trying to start shit. Going back to [Town S] tomorrow cause you were complaining about not having enough breaks so I’m taking [the child] with me”. (as per original)
(Mother’s affidavit filed 4 June 2014 at [11])
The child was not returned to the care of the mother.
When she swore her affidavit on 4 June 2014 the mother had managed to speak with the child once for one short period. When the mother asked when he was going to bring the child home the father replied “… You’ll see her sometime this week maybe …” (original emphasis) (Mother’s affidavit filed 4 June 2014 at [14]).
The mother said that she did not know where the father lived in Town S but understood that he worked on Tuesdays, Wednesdays and Thursdays at the S Army Barracks.
The mother said that on 2 June 2014 she spoke briefly to the child who said she wanted to come home. The father allegedly said “… You will see her whenever I go to [Town C] …”. When asked by the mother when that would be he said “… I don’t know. Soon. I haven’t decided …” He also said “… Well it’s my turn to have her and I haven’t decided when I want to give her back …” (original emphasis) (Mother’s affidavit filed 17 June 2014 at [2]).
The mother initiated these proceedings on 4 June 2014. I will refer to the details of those proceedings shortly.
By a series of text messages the mother said that she and the father arranged for the child to spend time with her at the Town C McDonalds on 13 June 2014. The mother said that the father had made it clear that he was not returning the child to her care but that the mother would just be spending time with her. Despite waiting for some time at the Town C McDonalds, the father did not appear.
At the time the matter was before the court the mother had not seen the child since she had been removed by her father.
The mother deposed to the child B being upset and distressed by the absence of the child L.
The Proceedings
On 4 June 2014 the mother filed an initiating application in the Parramatta Registry of the Federal Circuit Court of Australia. She sought the following interim orders:
1.That the Registrar list the matter at the Parramatta Registry within three business days.
2.That pending further Order, the mother and father have shared parental responsibility for the [the child].
3.That pending further Order the child live with the mother.
4.That pending further Order, the father spend time with the child as authorised in writing by the mother.
5.That the father shall return the child to the mother by delivering the child to [Town C] Police Station by 4.00pm on the date of these Orders.
6.That a Recovery Order issue for [the child] pursuant to s67U of the Family Law Act.
7.That the Marshall, the Deputy Marshall, all officers of the Australian Federal Police and all officers of the State and Territory Police be authorised and directed with such assistance as they require and if necessary by force to:
a.Stop and search any vehicle, vessel or aircraft and search the premises or place for the purpose of finding the child;
b.Recover the child;
c.Deliver the child to the mother;
d.Arrest, without warrant, the father in the event that the father again removes or takes possession of the child.
8.That the father be prohibited from removing or taking possession of the child, except in accordance with Order 4 herein.
9.The matter be heard ex parte.
The Deputy Registrar listed the matter for hearing on 18 June 2014 and directed that service be effected upon the father by 9 June 2014. In support of that application the mother relied on an affidavit of hers sworn 4 June 2014. She swore a further affidavit on 17 June 2014.
The hearing before the trial judge
The trial judge did not give a judgment and his reasons for the course taken by his Honour needs to be garnered from the transcript.
The matter commenced with the solicitor for the mother seeking to have the matter heard immediately as it related to the recovery of a young child where the mother had, until the removal of the child on 31 May 2014, the primary care of the child.
The trial judge then referred to the Initiating Application filed by the mother. Questions in that document seeking the dates of commencement and termination of the co-habitation had been answered by the mother as “Not Applicable”. The trial judge queried whether the parties had co-habited. He was referred to the mother’s affidavit. The trial judge said “… So she has certified that this is all true but you’re telling me it’s not true?” When informed that was an error his Honour replied “… She’s not exactly starting off terribly well to get an order today, which would almost be an ex parte order. When were the documents served?” (Transcript, 18 June 2014, p 3)
The court was informed that service was effected on 12 June 2014 which his Honour noted was three business days earlier.
The solicitor for the mother was then asked if there was a suggestion that the child was in danger being with the father and the answer was that there was a risk of psychological harm from being away from the primary caregiver. After clarifying there was no suggestion that the child was at risk of abuse, family violence or that the father had any serious parenting capacity impediment, the trial judge said:
… So the urgency of this is your client says, where she gives me incorrect information in her initiating application on an application where she says the parties never ever lived together, that she wants the child back straightaway because the child is away from her.
(Transcript, 18 June 2014, p 4)
The trial judge then turned to the father who confirmed that his view was that the child should stay with him. When asked why, he said “… They didn’t question, when I took my daughter, your Honour [the mother] had requested for me to take [the child] due to her substance abuse and the effect that it was having on her. The reason I have not returned her to her mother - - -” (Transcript, 18 June 2014, p 4).
The father then confirmed that it was his case that the mother was abusing Endone. To which the trial judge replied “Well, that’s not legal, as I understand it. It’s an opiate. Thank you. Anything else?” The reply from the father was:
… I am collating all evidence from ….. child services in regards to child care reporting, [the mother’s] parenting. I feel that my daughter’s interest for her to stay with me, your Honour. (as per original)
(Transcript, 18 June 2014, p 5)
When asked what time he had been spending with the child from the time of separation the father said that he had four nights a week from February until 23 April 2014 when he returned to the military. He said that time included overnight time and he thus agreed with the trial judge that the child was spending more time in his care than with the mother.
The trial judge was then referred to the passages in the mother’s affidavits where she gave evidence to the contrary. His Honour was referred to the following paragraph in the mother’s affidavit of 4 June 2014 at [25]:
From about March 2014 to the time of filing this application, [the father] has spent time with [the child] for a couple of hours over some weekends. Other than the circumstances leading to these proceedings, he has had her overnight only on one occasion.
The transcript then continued:
HIS HONOUR: Right. So she’s saying that they separated in February and from about March until she filed the application on 4 June, the father spent time with the child for a couple of hours over some weekends.
MR NOENG: Yes, your Honour. That’s her position.
HIS HONOUR: But then she goes on in the next sentence and contradicts that. She says he has had the child overnight on one occasion. Can you reconcile that?
MR NOENG: Sorry, your Honour?
HIS HONOUR: Can you reconcile those two sentences. They appear to be inconsistent.
MR NOENG: It reads as an exception to the first, your Honour - the first sentence.
HIS HONOUR: Well, it’s inconsistent with the first sentence. She doesn’t say ‑ ‑ ‑
MR NOENG: To some extent, your Honour. It’s an exception.
HIS HONOUR: ‑ ‑ ‑ “Other than on one occasion when he had her overnight, [the father] has spent time with [the child] for a couple of hours over some weekends.” They stand in juxtaposition. Look, I’m not prepared to make an order at this stage. I’ve got no allegation that the child is at risk with the father and I’ve certainly got an allegation that the child is at risk with the mother. I won’t be ordering the child back at this stage, Mr Noeng. I will give the father a chance to file some documents and see where we get to.
(Transcript, 18 June 2014, p 7)
There was then a discussion of what should occur in the future. His Honour said to the father “… This is an urgent situation. You need to understand that” (Transcript, 18 June 2014, p 7). The father sought 21 days for the filing of affidavits. He then proposed that if the mother wished to have time with the child that should be done by way of supervised time at a contact centre in Town C.
After confirming that the mother’s solicitor’s instructions were that she had had no involvement with the Department of Community Services, his Honour directed the father to file his evidence within 21 days and fixed the proceedings for mention on 15 July 2014.
The father then raised the issue of venue asking for the matter to be transferred to Town C. The mother opposed that course because her solicitors, the Aboriginal Legal Service, are based in Parramatta. After it was pointed out that both the parties and the child were in Town C, the solicitor for the mother indicated that he had no objection to the matter being transferred to a circuit which is closer. The first available date was 30 September 2014.
The solicitor for the mother then sought, having regard to that date, the opportunity to make an application for the mother to spend time with the child in the interim. The mother was not present. The trial judge thought that was significant saying that she should have been present at court. The mother, according to her solicitor, was not present because of her difficulties in caring for the child B. The exchange then continued:
MR NOENG: Yes, your Honour. Alternatively, your Honour, would your Honour be prepared to keep the matter in your list up until 15 July ‑ ‑ ‑
HIS HONOUR: No. We’ve already got the situation where your client can’t come here. I need her here to be able to deal with the matter. She can’t come, you tell me, because she has got the care of another child. That problem is overcome in [Town C], isn’t it?
MR NOENG: I can ‑ ‑ ‑
HIS HONOUR: Or if I adjourn this matter to an earlier date, is she actually going to overcome the difficulties that I’m told prevent her from getting here today and actually come?
MR NOENG: I can obtain those instructions ‑ ‑ ‑
HIS HONOUR: Well, no. I’m ‑ ‑ ‑
MR NOENG: ‑ ‑ ‑ your Honour, but I’m sure she will.
HIS HONOUR: Well, she should be here today, then, shouldn’t she?
MR NOENG: Sorry, your Honour?
HIS HONOUR: If she can overcome the problem, she could have overcome them for today and she should be here today.
MR NOENG: Yes, your Honour.
(Transcript, 18 June 2014, p 11)
I do not understand the last comment to be a concession by the solicitor as to the correctness of the proposition that was put to him
His Honour then made the orders he had foreshadowed for the father to file and serve a response and affidavit evidence within 21 days and stood the matter over for mention at Town C on 30 September 2014.
Grounds of Appeal
There are three grounds of appeal. I address the grounds of appeal as ultimately pressed during oral argument.
Ground 1
1.His Honour failed to afford the appellant procedural fairness or otherwise properly engage in the issues then presenting in failure to hear the recovery application or failure to set the recover (sic) application down for hearing in a suitable time frame or otherwise properly engage with the application for a recovery order in circumstances where His Honour had identified the matter was urgent.
It was submitted by the mother that the evidence raised the following issues:
· the risk to the child of psychological harm;
· the separation of the child from her mother;
· the separation of the child from her sibling; and
· the change in the child’s circumstances.
It was then submitted that the trial judge, having correctly noted that the matter was urgent, did no more than stand the matter over to 30 September 2014. That was, it was said, tantamount to dismissal of the urgent application for a recovery order.
It was submitted that the trial judge should have appointed an independent children’s lawyer to represent the child, and ordered the parties to attend a Child Dispute Conference or a Child Inclusive Conference at Town C and retained the matter within his docket to assess an appropriate time to hear the recovery application following the father filing his evidence.
Neither of the first two courses proposed on appeal was advanced to the trial judge and it is difficult to see how they would have assisted in the prompt hearing of the recovery application in any event. However, having decided to adjourn the matter these two options became viable alternatives which the trial judge should then have investigated notwithstanding the absence of a formal application for their consideration. The failure to contemplate this step increased the prospects of the mother’s application again being adjourned and heard on an indeterminate date.
In oral argument, counsel for the mother highlighted the consequences to the mother and child of the asserted denial of procedural fairness. It was submitted that the lack of procedural fairness occasioned real practical harm in the following respects: (a) legal prejudice in that her application for a recovery order was effectively dismissed (b) real deprivation of time for the child with her mother (c) indefinite uncertainty for the mother as to when she might see or spend time with the child, when her two children might spend time together and continued uncertainty surrounding the child’s care arrangements, including where the child is living and who cares for her while the father is working.
The point is highlighted by the hearing concluding with even the trial judge not knowing the circumstances of the child’s present care.
There is force in the proposition that for the time being the trial judge should have retained the matter in his docket and again considered its urgency in light of the father’s evidence. The evidence, albeit only from one party, indicated that an urgent hearing was required. His Honour accepted that and, initially, proposed retaining the matter in his docket and returning it for mention on 15 July 2014, having given the father a very generous 21 days to file and serve evidence on which he wished to rely.
Whilst an adjournment would be difficult to criticise, the length of this adjournment and the listing of the matter for mention as opposed to hearing did not meet the urgency of the situation. It must be accepted that whether an order for the return of the child was made at the hearing or not, the consideration of those orders was being made on the evidence of only one party. Whatever the outcome, the orders that were being made were of a short term interim nature only. At some stage there would need to be a more considered hearing based upon evidence from both sides.
It must also be recognised that courts dealing with family matters are busy courts. There are other litigants, many of whom also have urgent matters that require consideration. A court, when adjourning cases and finding time to hear urgent cases must, however, balance the urgency of the case before it against the other demands on the court’s time.
The trial judge did not adopt that course but acceded to the father’s application to have the matter transferred to Town C. The first available mention date was 30 September 2014. While that was the logical place for final hearing it must be recalled that the parties could have conveniently attended any further hearing by electronic means.
I consider that the adjournment of the matter to 30 September 2014 did not adequately address the urgency of the case which his Honour had himself recognised. An application for a recovery order of the type with which we are concerned is one that must be heard urgently. I accept that the lengthy adjournment was tantamount to a refusal of the application, at least, on an interim basis.
Section 67U of the Act empowers the court to make a recovery order. The term “recovery order” is defined by s 67Q. As is made plain by s 67V, in deciding whether to make such an order, the paramount consideration is the best interests of the child. The purpose is to restore a child to a person with whom the child is to live, spend time with and so on in accordance with s 67Q.
In adjourning the matter for so long the trial judge was required to consider those interests. I accept the submission of the mother that the delay in this matter did not address the urgent nature of a recovery order and ran the risk of the subsequent hearing being more in the nature of an interim parenting application rather than a recovery order application.
Although the trial judge correctly identified the issues and the urgency of the matter there was ultimately no recognition of that urgency in the orders that were made. As counsel for the mother submitted, there was no nexus between the identified urgency and the orders.
In Ghorbani & Saeed [2013] FamCAFC 167 the Full Court said, at [34]:
That said, a failure to engage with the issues in a case represents a denial of access to a Court. By the adjournment of the father’s application, it was in effect, dismissed. On another day the judge might have made arrangements to give the matter some brief time later in the day, in the next day or so or made arrangements for the matter to be listed in that time frame before another judge.
Accordingly, there is merit in this ground.
Ground 2
2. His Honour erred in failing to properly consider pursuant to S.60CC the best interests of the child in his failure to hear the recovery application or failure to set the recover (sic) application down for hearing in a suitable time frame in particular:-
(a)The primary obligation of the court to protect the child from psychological harm, pursuant to S.60CC(2)(b)
(b)The child’s right to (sic) meaningful relationship with (sic) mother pursuant to S.60CC (2) (a)
(c)The child’s right to a relationship with her older sibling pursuant to S60CC (3) (b)
…
(e)The impact of any change of the child’s circumstances upon the child pursuant to S.60CC(3) (d).
The mother submits that the trial judge did not, as he was obliged to do, consider the issues set out in this ground. I infer that the gravamen of the complaint is that a proper consideration of these matters would have resulted in the making of a recovery order or the early hearing of the application.
It is then necessary to determine whether his Honour failed to consider the other suggested matters.
The basis of his Honour’s decision seems to be encapsulated in his noting that there was no risk to the child being with her father but that there was an allegation of risk with her being with her mother.
The first is not correct. Although there was no allegation that there was a risk of physical harm to the child when she was with her father, the basis of the mother’s case was that there was a risk of psychological harm to the child by being away from her primary caregiver. This risk is compounded by the refusal of the father, prior to the hearing of the application for the recovery order, to have the child spend any time with her mother.
The second was based on a statement (from the father) as to what he said was the mother’s use of Endone. He said “… I think she – I believe she’s abusing it, your Honour” (Transcript, 18 June 2014, p 5). No further details were given. The father did not indicate in what way the alleged abuse of Endone impacted on the parenting ability of the mother or the well-being of the child. The father’s text messages annexed to the mother’s affidavit do not raise any such concerns.
That statement needed to be weighed against the evidence of the mother that she was the primary caregiver, that the father had spent limited time with the child, that the child had a close relationship with her and the child B and had not spent any substantial time away from them. It is to be remembered that the child L was young.
In response to these matters, the father asserted that from the date of separation in February (about 28 February according to the mother) until 23 April 2014 the child lived with him four days a week.
Even if that were to be accepted, there was clearly an issue as to whether the child’s best interests were to be served by remaining with her father or being returned to her mother. Such a determination, even on a short-term interim basis, should be determined by the court and not by the unilateral acts of one of the parties.
I consider that the trial judge erred in not undertaking such a consideration when the matter was before him, or, in not adjourning the matter for a very short period of time to enable the father to adduce evidence and then undertake such a consideration. I accept that, given the nature of the hearing, such a consideration would necessarily be truncated but, nevertheless, in the circumstances of this case, should have been undertaken on that day or within a very short time thereafter.
The facts in this matter bear some similarity to those in Ghorbani & Saeed which I have already mentioned. At [25], the Full Court identified the error of the trial judge as declining to hear the urgent application and failing to fix a hearing date leaving the parties “without a resolution of their urgent applications and without any expectations that there would be a timely hearing of their applications”.
I am also concerned that what the trial judge regarded as the mother giving conflicting and contradictory evidence seems to have influenced his decision. Whilst the inaccurate completion of parts of the Initiating Application was unfortunate it seems to have been an obvious error. There was no reason not to accept the solicitor’s submission that it was a simple mistake. Further, unlike his Honour, I do not see the passage set out in the affidavit referred to above to be contradictory.
A further matter that seems to have influenced his Honour was the absence of the mother. She was in Town C – not surprising given she had to care for B. The failure to consider the oral application for the mother to spend time with the child L prior to 30 September 2014 because the mother was not present was most unfortunate. The focus, rather, should have been on the child’s best interests and not the absence of the mother.
In my opinion, this ground of appeal is established.
Ground 3
3. His Honour erred in failing to provide adequate reasons for the reasoning process which led to his failure to hear the recovery application or failure to set the recover (sic) application down for hearing in a suitable time frame.
I consider that I have been able to discern from the exchanges between the bench and the parties the reasons for the course adopted by the trial judge. Given that I propose that the appeal be allowed on other grounds it is fruitless to consider whether those exchanges adequately revealed the reasoning process.
Conclusion
As I have found merit in two of the grounds of appeal I propose that the appeal be allowed. I propose that the orders made on 18 June 2014, other than for the orders for the filing of the father’s evidence, should be set aside and the recovery order be heard as a matter of urgency by a judge of the Federal Circuit Court of Australia. I suggest that an order should now be made for the appointment of an independent children’s lawyer. Such an order was not sought by the mother but I consider that such an order should now be made. Her reason was that she did not wish for that appointment to delay any further hearing. I stress that such an appointment should not be permitted to delay the hearing of the mother’s application and it should proceed urgently even without any involvement of an independent children’s lawyer.
Thus, the orders I would propose are:
1.That the Appeal be allowed.
2.That Orders 2 and 3 made by Judge Halligan on 18 June 2014 be set aside.
3.That the mother’s urgent application filed on 4 June 2014 be heard as a matter of urgency by a judge of the Federal Circuit Court of Australia other than Judge Halligan.
4.That pursuant to s 68L(2) of the Family Law Act 1975 (Cth) the interests of the child … be independently represented by a lawyer and it is requested Legal Aid New South Wales, Sydney make arrangements as soon as practicable to secure that independent representation of the child’s interests.
5.That within seven (7) days of the notification of such appointment each party provide to the Independent Children’s Lawyer copies of all relevant documents relied upon by that party.
Thackray j
I agree with the reasons of Justice Aldridge and I would make the same orders as proposed by his Honour save that in proposed order 3 where there was a reference to an “urgent application”, I would say the “interim application” . But otherwise I have nothing to add.
Ryan J
I agree with the reasons delivered by Justice Aldridge and subject to the minor variation to the orders proposed by Justice Thackray which I adopt, I agree with the orders proposed by his Honour.
Thackray j
Those being the reasons of the Full Court, I formally pronounce orders in the terms proposed in Justice Aldridge’s judgment with that very minor variation.
RECORDED BUT NOT TRANSCRIBED
Costs
Thackray, ryan & aldridge jj
The appeal having been allowed the question arises as to what should occur in relation to costs. Counsel for the appellant mother very properly does not seek an order for costs against the respondent father, it being clear that the error identified is not of the making of either of the parties and it is an error of law. That being the case, it is appropriate that costs certificates should be issued to both parties to recover at least some of the costs that have been incurred in the presentation of this appeal.
I certify that the preceding seventy three (73) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 29 July 2014.
Associate:
Date: 31 July 2014
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