Vanzin & Vanzin
[2014] FamCAFC 245
•5 December 2014
FAMILY COURT OF AUSTRALIA
| VANZIN & VANZIN | [2014] FamCAFC 245 | |
| FAMILY LAW – APPEAL – APPEAL OF INTERIM JUDGMENT – CHILDREN – Where the father appeals an interim judgment – Where trial judge made orders based on least contested evidence available to his Honour – Where trial judge failed to expressly consider the legislative wording in s 60CC – Where trial reasons were brief – Whether trial judge properly observed the principles applicable to interim proceedings – Whether trial judge properly observed the principles applicable to the s 61DA presumption – Where the court held that interim proceedings do not obviate the need to consider s 60CC considerations and provide adequate reasons – Where the court held that the trial judge’s reasons implicitly and briefly considered the interests of the child and the evidence before the court – Where the court held that s 65DAA(6) applied to a shared parenting agreement made by consent – Appeal dismissed. General observations on the exigencies of busy trial lists and trial judges’ duties. | ||
Family Law Act 1975 (Cth)
Family Law Regulations 1984
Gronow & Gronow (1979) 144 CLR 513
Goode & Goode (2006) FLC 93-286
Lenova & Lenova (Costs) [2011] FamCAFC 141
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
| APPELLANT: | Mr Vanzin |
| RESPONDENT: | Ms Vanzin |
| FILE NUMBER: | BRC | 7880 | of | 2012 |
| APPEAL NUMBER: | NA | 63 | of | 2014 |
| DATE DELIVERED: | 5 December 2014 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 4 December 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court |
| LOWER COURT JUDGMENT DATE: | 23 October 2014 |
| LOWER COURT MNC: | [2014] FCCA 2590 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr G Waterman |
| SOLICITOR FOR THE APPELLANT: | Direct Access Brief |
| COUNSEL FOR THE RESPONDENT: | Mr P Baston |
| SOLICITOR FOR THE RESPONDENT: | Lynn & Rowland Lawyers |
Orders
IT IS ORDERED:
That the appeal from the Orders of Judge Howard dated 23 October 2014 be dismissed.
That the appellant father pay the respondent mother’s costs of and incidental to the appeal, including the costs of and incidental to the Application in an Appeal for expedition, in such amount as is agreed in writing between the parties or, failing such agreement, as assessed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Vanzin & Vanzin 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 BRISBANE |
FILE NUMBER: BRC 7880 of 2012
APPEAL NUMBER: NA63 of 2014
| Mr Vanzin |
Appellant
And
| Ms Vanzin |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
1.The father of the child, born in 2009, appeals interim parenting orders made by Judge Howard on 23 October 2014. On 17 November 2014 May J ordered, with the consent of the parties, that the appeal be heard expeditiously in the December sittings of the Full Court.
2.Also on that day Finn J, as the delegate of the Chief Justice, certified, pursuant to section 94AAA(3) of the Family Law Act 1975 (Cth) ("the Act"), that it is appropriate for the jurisdiction of the Family Court in relation to this appeal to be exercised by a single judge. This hearing proceeded then in that manner. Despite the orders being interim orders, and therefore interlocutory in nature, the father appeals as of right (s 94AA of the Act; Family Law Regulations 1984 “the regulations” reg 15A).
The background to the orders and reasons for judgment
3.The orders and reasons have significant curiosities. Each record on their face that they were respectively made and given on 23 October 2014. The Court's intranet records similarly. The reasons record on their face that they were delivered ex tempore. The transcript of proceedings on 23 October records "Judgment delivered" in two places, yet arguments succeed that notation in each case. There is nothing in the transcript to indicate that judgment was given at the conclusion of the proceedings or that it was reserved.
4.It was common ground at the bar table on the hearing of this appeal that, despite these oddities, one set of ex tempore reasons in respect of all issues was delivered on 23 October. All 36 paragraphs of the orders are shown on the face of the order as having been made on 23 October. The transcript and the concluding paragraph of the reasons make it plain that this cannot be so. In the latter his Honour said:
10.I am not inclined to change the dates of travel. If that means that the father seeks some extra time (makeup time) with the child - when the child returns from Japan - then I consider that will be appropriate. A proposal should be sent into chambers in that regard. It is probably best if the makeup time takes place during the holiday period - but the Court will consider the makeup time during the holiday period or a non-holiday period.
5.Neither that discussion, nor anything else recorded in the transcript, bears any relation to 20 paragraphs of the orders ([16] to [36]) said to have been made that day. Again, from the bar table before me, it was explained that email exchanges took place with his Honour's chambers that resulted in "makeup time" orders being made on or after 28 October. Neither party takes any point about orders not being made by reference to a process occurring in court, nor seeks to assert that they were not given an opportunity to be heard.
6.The hearing on 23 October 2014 occurred subsequent to an earlier hearing on 11 September 2014. There the issues then live between the parties were outlined to the Court. They mirror the issues live before the Court at the later proceeding on 23 October 2014. Relevant to matters raised subsequently at the 23 October hearing, and on this appeal, the transcript of the 11 September 2014 proceeding reveals his Honour saying:
…Now, because Japan has become a signatory to The Hague Convention it is highly likely that I will be ordering to allow the mother to take the child to Japan. So rest assured the mother should be confident that that will happen, but the father needs to have an opportunity to have all matters addressed and I just can't see the urgency…
(Transcript, 11 September 2014, page 7, lines 18-22.)
7.Despite apparently affording the father a later opportunity to be heard in respect of the mooted travel to Japan (and otherwise), a notation to procedural orders otherwise made on 11 September nevertheless records:
It is the Court's intention on 23 October 2014 to put in place an order to allow the mother to travel with the child to Japan subject to conditions which will either be agreed to by the parties or will be imposed by determination of the Court.
8.No order in respect of travel was otherwise made. There is no appeal from any other order made that day.
The grounds of appeal and their amendment
9.At the hearing of the appeal counsel appearing for the father conceded, properly as it seems to me, that some of the grounds of appeal (drawn by the father himself) should be struck out; they did not assert appealable error - at least in their non-particularised form. However, the written outline of argument filed by the father, and also apparently prepared by the father himself, adduced arguments which did allege appealable error.
10.Counsel for the respondent could not contend that he was taken by surprise or otherwise embarrassed by amended grounds reflecting those arguments.
11.An amendment was permitted so as to allow the appellant to rely upon grounds drafted by his counsel and handed up after a short adjournment. Mention should be made of one matter contained within the father's summary of argument and amended grounds. It is asserted that his Honour made a material error of fact in asserting that a "parenting plan" executed by the parties (s 63C of the Act) provided for the father to see the child on a nine/five night arrangement each fortnight when, in fact, the parenting plan made provision for a ten/four night arrangement. That had the potential to inform materially the ultimate orders because it was asserted his Honour intended to continue that existing arrangement but ordered a nine/five night division of time.
12.Ultimately, it was agreed that the parenting plan, in fact, provided for a nine/five night arrangement. His Honour's orders provided for a ten/four night arrangement. It was also agreed by both counsel that, aside from any asserted appealable error, his Honour clearly intended to make orders continuing the parenting plan arrangement - ie a nine/five night arrangement. Thus, it was agreed the orders should be altered as a slip so as to make it clear that the orders appealed from were, in fact, orders that reflected a decision reflecting a nine/five night arrangement. That should be attended to by the parties with His Honour.
The context for the proceedings before the judge
Factual context
13.The parties separated in October 2012 when the child was approaching three years of age. Within weeks of separation the parties had on 26 November 2012 executed the parenting plan just referred to. In contrast to a registered parenting plan no court process is required for revocation or variation of the parenting plan (cf s 63E of the Act), but any agreement to do either had to occur, of course, with the agreement of the parties to the plan and the variation, or revocation had to be in writing (s 63D of the Act). It is common ground that there was no written variation of the parenting plan by the parties in this case.
14.Relevant to issues on this appeal, the parenting plan also provides specifically that:
·We agree to be flexible with the [time] arrangement[s] so that [the child] can spend more time with his father.
·…[the child] and his mother will travel to Japan for three and a half weeks for Christmas and new year 2012/2013.
·…Further periods of time would be spent in Japan as specified in 2013" and for time "in March/April [2014] with such time to be agreed between the parties.
15.Earlier this year the father moved to live with his current partner. At about the same time the parties signed a form for B school. Also about that time the mother relocated her residence to a place within the "catchment area" for B school. It is agreed that in July 2014, after about 19 months of the agreed nine/five night parenting arrangement, it was altered to effect a seven/seven night arrangement (two nights in one week and five nights in the other week in each fortnight).
16.The mother alleges that the change was effected unilaterally by the father. He denies that. He asserts the mother agreed to the change. That issue aside, the new arrangement had been in place from about 27 July, or about 11 or 12 weeks, by the time of the hearing before the judge.
Procedural context
17.When the matter came before his Honour on 23 October the parties had reached agreement about various parenting orders. It is necessary to record that one of the orders made by consent was that the parties "have equal shared parental responsibility" in respect of "decisions about major long term issues in respect of the child including, but not limited to" a number of specified matters. The consent orders also provided that the child shall live with his mother and for periods of time with each parent during school holidays.
18.It is important to record that his Honour apparently heard this matter in a busy list. Counsel for the mother (who did not represent her before the judge) said this was "one of about 30 matters" before his Honour that day. Whether that is literally true or not it seems clear - for example, from the lack of any demur by counsel for the father - that the matter was indeed heard as one of a large number of matters in a busy list.
19.It is also clear from discussion occurring during the hearing that the orders were being made in the context of them pertaining for a period of "about three months, maybe a little longer because it's Christmas coming up" and in circumstances where a family report was to be presented to the Court at that further hearing. It was common ground before this Court that a consequence of that would be family report interviews about six weeks ahead of that date, that is, six weeks or "maybe a little longer" from the date of hearing.
20.The process by which interim parenting decisions are made within busy lists containing many cases with equal claims to be heard is "…an abridged process where the scope of the inquiry is significantly curtailed" (Goode & Goode (2006) FLC 93-286 at [68]). That consideration, and the fact that the issues for determination here are extremely narrow, does not obviate the need to follow mandatory statutory requirements (Goode (above) at [82]).
21.Nor does it obviate the need to give reasons for the decision reached; the orders pertain to the life of a child, however benign the issues might seem, and the parents should know why a decision has been reached (see for example, Kirby J writing extra-curially ‘Always permissible, usually desirable and often obligatory’ (1994) 12 ABR 121,135-6). No ground here asserts an inadequacy of reasons, but the brevity of the ex tempore reasons delivered in this case contributes to at least some of the arguments made on behalf of the appellant.
22.The breadth and depth of the "significantly curtailed" inquiry in hearings of the instant type must also depend, to a significant extent, on the breadth and depth of the issues to be determined. So too, as it seems to me, an assessment of the adequacy of reasons given for interim decisions must take account of the same circumstance: "The adequacy of the reasons will depend upon the circumstances of the case" (Sun Alliance Insurance Ltd v Massoud [1989] VR 8 at 18). That is all the more so when reasons are delivered in cases of this type ex tempore.
The issues before the judge
23.Within the context just described the issues confronting his Honour on 23 October were:
a)Whether the child should spend five nights per fortnight with his father, as had been occurring for about 19 months until the end of July 2014, or seven nights per fortnight as had been occurring for about 11 or 12 weeks.
b)Should the child commence prep at E school as proposed by the father or B school as proposed by the mother or V school, a "compromise" put forward by the father effectively as an alternative proposal. It seems the latter was about equidistant between E school and BP school.
c)Should the child be permitted to travel to Japan with the mother for five weeks, as contended by the mother, or for three weeks, as contended by the father?
24.It can be seen, then, that not only were these interim proceedings conducted within a busy list with all of the strictures relevant to that, but also the issues were extremely narrow. His Honour recognised that it is not possible in the usual course of events to resolve contested matters of fact in proceedings of this type (reasons at [1]) and recognised that, as the Full Court said in Goode above, reference should be made to "the less contentious matters such as the agreed facts and issues not in dispute" (reasons at [2], [3]).
The appeal against the order for time
25.Paragraph 16 of his Honour's orders provides for time to occur as per a nine/five night arrangement. Three amended grounds of appeal challenge that order. His Honour's reasons with respect to orders as to time are as follows:
2.In relation to the issues though, the best approach for the Court to take is to consider objectively what the situation is. In terms of the time with each parent, there was a parenting plan from 2012 whereby it was agreed that the little boy would live nine nights with the mother and five with the father. The mother then says that, at the end of June this year, the father unilaterally changed that plan. The father does not agree that he acted unilaterally. So there is a dispute on the facts about that issue but the Court does have, by way of certainty, the fact that, in 2012, there was an agreement between these parents about what time the child should spend with each parent.
3.I think what we are looking at here is the need for the Court to find objective facts that are not in dispute and put in place some orders pending a family report. The objective facts that are not in dispute in relation to time are a nine-five arrangement was agreed between the parents in 2012 – namely that the child would live for nine nights per fortnight with the mother and five nights per fortnight with the father. In the absence of a Family Report – that arrangement will form the basis of the Order that I am now going to make. That will be the interim order pending consideration by the Court of a Family Report.
26.One aspect of the grounds, as amended, has already been dealt with. The alleged erroneous material fact as to what time was provided for in the parenting plan is not an error at all. Counsel's argument did not elucidate what was meant by amended ground (3) which asserts that:
The judge took into account irrelevant matters … and fell into error in not following the legislative pathway in Goode & Goode in circumstances where after making by consent orders for equal shared parental responsibility, which had not been rebutted, did not consider the matter in accordance with the prescribed pathway.
27.The ground appears to mirror an abandoned ground that "the judge failed to properly apply section 65DAA(1)(a), (b), (c)".
28.Goode makes the point, as it respectfully seems to me, that even in an interim case the Act's requirements must be followed. The ground and the argument appears to contain a number of erroneous premises. There is no question of anything (presumably what is meant is the s 61DA presumption) "not being rebutted". Secondly, whether or not the section 61DA presumption applied, an order for equal shared parental responsibility was made by consent. As a result s 65DAA(6) applied, and thus his Honour was not obliged to apply s 65DAA(1) and (2).
29.As a result his Honour was empowered to make "such parenting order as the Court [thought] proper" (s 65D of the Act). In doing so his Honour was obliged to "regard the best interests of [the child] as the paramount consideration". In determining the child’s best interests his Honour was obliged to consider the matters set out in s 60CC. The judge did not deal seriatim with s 60CC's primary and additional considerations in his reasons. There was no obligation upon his Honour to do so.
30.Indeed, there is no such obligation upon a judge to do so even after a trial. The Act obliges a judge to "consider" all such s 60CC matters as are relevant to a decision about the best interests of the particular child in his or her particular circumstances.
31.To repeat, the breadth and depth of that consideration, and the number of factors relevant to same, must depend upon the nature and breadth of the issues and the nature of the proceedings. Thereafter, a judge is subject to a separate (non-statutory) obligation to provide reasons sufficiently adequate to demonstrate such consideration as the issues and the proceedings demand.
32.Here the central issue identified by his Honour is that a "nine/five shared care arrangement" had pertained for some 19 months and a "seven/seven shared care arrangement" had pertained for 11 or 12 weeks. His Honour’s obligation to apply s 60CC, and consider, such considerations as were relevant, informed orders which would prevail for about three or four months until a family report was prepared and the matter was heard again.
33.An amended ground suggests that his Honour "gave insufficient weight" to the fact that the parties had, in fact, themselves agreed to change the arrangement in the parenting plan to a seven/seven arrangement (as the father asserts).
34.Emails between the parties are said to support that conclusion. I consider they support the opposite conclusion. An email from the mother to the father of 29 July refers to "stay[ing] in the same shared care as is". The father says this is a reference to the seven/seven arrangement that it might be noted, is said to have started two days previously. However, all following emails exhibited to the affidavit indicate plainly, that all issues ultimately agitated before his Honour remained live and unresolved at the time the emails were written.
35.Indeed, an email from the father the very next day asks the mother if she will "…reconsider the proposed care arrangements for the child, otherwise I will book us into the next mediation appointment available". The only "proposed care arrangement" on the evidence before me can be the proposed seven/seven arrangement.
36.The assertion as to the misapplication of weight fails as resting on a false premise. The judge plainly gave considerable weight, in the context earlier described, to the care arrangement that had existed for 19 months until shortly prior to the hearing. His Honour was plainly entitled to do so. The Full Court said in Goode at [73]:
That is not to say that stability derived from a well settled arrangement may not ultimately be what the Court finds to be in the best interests, particularly where there is no ability to test controversial evidence, but that decision would be arrived at after a consideration of the matters contained in section 60CC, particularly section 60CC(3)(d) and section 60CC(3)(m) and, if appropriate, section 60CC(4) and 60CC(4A).
37.It is true that his Honour did not give expression to a consideration of the subparagraphs of section 60CC(3) to which the Full Court refer or, indeed, to any subparagraphs of that section. However, within the very narrow ambit of the issues in this case it is, in my view, tolerably clear that his Honour was giving implicit recognition to precisely those matters. I am not persuaded of any error in respect of his Honour's order for time (order 17).
The appeal against the orders for the child’s school
38.One amended ground and five sub‑grounds assert errors in the attribution of weight by his Honour in arriving at the decision, in paragraph 17 of the orders, that the Child attend the B school as the mother proposed.
39.The notorious difficulty for an appellant challenging attributions of weight by a trial court are well traversed in the authorities. Those difficulties might be seen to be significantly exacerbated when decisions are made in the contexts earlier set out. His Honour's reasons in respect of this issue are:
4.In relation to the schooling issue – the objective facts in relation to [B] School are that the father signed enrolment forms in March of this year and, whilst the parents may have investigated other schools, no other enrolment forms were signed by both parents. [B] School is the only school for which both parents signed the enrolment form.
5.I understand that there are good points to be made for each of these schools and, indeed, on each point, there are excellent points to be made both ways. The Court is at a disadvantage at the moment because I am not able to make findings on the factual disputes. For instance, it is submitted to the Court that the [B] school enrolment forms were signed to keep a place open – to keep an option open – though I do note, as I said earlier, that no other forms were signed by both parents for enrolment. In particular, certainly, the mother did not sign an enrolment form for the [E] School.
6.I understand that there will be difficulties for Dad to get the child to school on time but I am sure that he will understand that, in a family that is separated, these difficulties arise practically as a matter of course. I do note that the child has a group of friends who are going from his kindy to the [B] School. This is another reason why it is beneficial for young [the child] to start at [B] next year.
7.It is difficult to come to a decision today in relation to the best school for the child [the child]. But I will make a decision because the child has got to start school. I note that both parties have asked the Court to make a decision on this issue. I am not in a position to properly evaluate, without the benefit of cross-examination of witnesses, the pros and cons of the educational advantages or otherwise of those two schools, suffice it to say that the parents must have thought enough of [B school] to both sign an enrolment form in an attempt to keep that option open and that was signed some time after they separated. So it seems to me that the preponderance of the objective evidence points toward [B] School and that will be the order.
40.A significant proportion of the evidence before his Honour addressed matters such as NAPLAN results and other reports as to which of the contending options was the "best school". Whatever might be made of these dubious measures, and whatever criteria or standards that purportedly measure which school is "better" than another, his Honour's inquiry was as to which school better met the best interests of this particular child in his particular circumstances, not which school was "better" than another. Factors relevant to that inquiry might mark out one school as more suited than another (facilities for disabled children might be an example). No such factors pertained here to the interim issue confronting his Honour.
41.Here such evidence as there was about the need for particular facilities at a school before his Honour emanated from a claim by the father and his mother (who is a teacher of English as a second language). His mother deposed that "[the child] is coping well with both languages [English and Japanese] and has no apparent learning difficulties" but his "… ability to communicate in English is noticeably slower than other comparable monolingual children due to his processing of the two languages".
42.His Honour also had evidence - adduced by the father - from a clinical psychologist, Ms H, who had seen the child on six occasions. She assessed his presentations as "within normal range for his age" and did not detect any clinically significant signs of emotional distress or behavioural difficulties. Crucially, and I would have thought, unsurprisingly, for a boy about to start prep, Ms H said:
…I believe uncertainty and unpredictability stemming from parental anxiety or poor parental cooperation can be as (if not more) damaging as making a poor choice in the child's education.
43.His Honour did not refer to either the evidence of the father's mother or Ms H. His Honour might have referred to the latter who had seen both parties and the child. The latter for six sessions. However, Ms H’s evidence and that of the father's mother (leaving aside the question of her expertise) was, it seems, a matter of dispute - or at least potentially so. His Honour's expressed desire to seek "objective evidence" about the schooling issue can, I think, be taken as an implicit rejection of the need to resolve any dispute between the two or to resolve the issue of expertise, neither of which was possible within the context of the proceedings.
44.Although not addressed in any of the amended grounds of appeal, the father's summary of argument asserts a material error of fact. His Honour refers to "a group of friends who are going from his kindy" to the B school. The father asserts that the child is the only child from his kindergarten who is attending that school. Whether that is true or not, it seems clear that in making the statement that he did his Honour was mistakenly referring to evidence from the mother (which does not appear to be in contest), that a number of friends who the child "had grown up with", and who were bilingual, were going to the school, and further evidence also apparent, and not in dispute, that "there is a significant enrolment of Japanese students" at the B school.
45.Those matters inform properly the decision reached. I do not consider any factual error to be material. As his Honour expressly acknowledged he had to make a choice without deciding contested matters that could not be resolved in the proceedings before him. (It might be said that a contested hearing with cross-examination would be unlikely to elucidate the issues further in any event.)
46.His Honour might have given weight to the matters enumerated in the amended grounds or given more or less weight to matters which he did. This Court may have given more weight to some matters or weight to other matters, but neither is the test; no error is demonstrated in the attribution of weight, nor is it demonstrated that his Honour's decision is "plainly wrong" (see, for example Gronow & Gronow (1979) 144 CLR 513, 519).
47.The challenge to the order specifying a school for the child in 2015 fails.
The appeal against the travel to Japan order
48.As earlier referred to, his Honour had indicated on 11 September that he intended to make an order permitting the mother and child to travel to Japan when the proceedings returned before him on 23 October. His Honour's reasons in respect of this issue at the conclusion of the 23 October proceedings are as follows:
8.In relation to the travel time to Japan. The mother is Japanese. The mother wants to travel with the child to Japan from 11 December 2014 until 19 January 2015. These dates for travel to Japan have been in place since February 2014. The father has been aware of the dates.
9.The father consents to the child travelling to Japan but would like to see the child travel from 11 December 2014 until “about” 1 January 2015.
10.Clearly, there will be great cultural benefits to the young child in travelling to Japan. Any overseas travel is expensive. The airline bookings/tickets for those particular dates (from 11 December 2014 until 19 January 2015) have been in place since February 2014. I am not inclined to change the dates of travel. If that means that the father seeks some extra time (make up time) with the child – when the child returns from Japan – then I consider that will be appropriate. A proposal should be sent into Chambers in that regard. It is probably best if the make up time takes place during a holiday period – but the Court will consider the make up time during a holiday period or a non-holiday period.
49.The grounds in respect of this issue were amended so that they became:
3.(b) The Judge made a finding of fact which was not supported by evidence and which I believe is untrue – specifically, I allege that there was no return ticket booked at the time of the hearing and the applicant lied to the court in this regard.
(c)The Judge failed to properly apply the law as set out in Section 60CA in that His Honour did not adequately consider or give adequate weight to the evidence before the court relating to concerns for the child’s developmental delays and behavioural issues referred to in the affidavit of Ms V filed 2.10.14 and the Report of Ms H (annexure SANV-1 affidavit of Father filed 22.10.2014.
(d)The Judge failed to properly apply the law as set out in Section 60CC(d)(i) and 60CC(d)(ii) in giving adequate consideration and weight to the likely effect on the child of this length of travel referred in as ‘c’ above.
(emphasis in original, amendments underlined)
50.It is repeated that the sole issue between the parties was whether the child should travel to Japan for five weeks (returning 19 January) or for three weeks (returning "about 1 January").
51.The assertion of error of fact is not supported by the evidence, including the father's own evidence. On 1 September 2014 the father sent an email to the mother which said, among other things:
… I have not told [the child] he is going yet. I believed we could work things out and he would be able to go with you. I still hope that we can work things out and you can both board that flight on Tuesday.
(Italics in original; underlining added.)
52.Plainly, the husband was aware that flights were booked and they were booked for flights to occur within a few days of the email. The father's counsel asserts that these tickets were in respect of different flights to those to which his Honour refers in the 23 October proceedings. So much is, of course, true. However, that ignores (among other things) the fact that the solicitor for the mother advised the Court, without demur from the solicitor representing the father, that:
The tickets were originally booked … in January this year and they had to be rebooked and rolled over because of the difficulties with the child travelling to Japan [in September]. The tickets were rebooked for this trip in February so it has always … been those dates.
(Transcript of proceedings, 23 October 2014, page 9, lines 33-41.)
53.Moreover, the solicitor for the father told his Honour at the proceedings on 11 September that her instructions were that: “…There was earlier an agreement that the mother could go” (Transcript of proceedings, 11 September 2014, page 7, lines 22-25.)
54.There is no merit to the factual challenge.
55.There is also no merit to the weight challenge in sub‑ground (b) for the reasons earlier outlined which address the evidence of both the father's mother and Ms H. I do not accept the premise in the ground; the evidence of Ms H does not speak of any developmental delays that need to be addressed. To the extent that there might be any such suggestion, there is, it seems, a contested issue between the evidence of Ms H and the father's mother. Similar considerations apply to sub‑ground (d). I can see no error in either.
56.The challenge to the order in respect of travel to Japan fails.
Conclusion
57.The appeal fails.
Costs of the appeal
58.Submissions as to costs were sought from both parties at the conclusion of the appeal in respect of either outcome. The appellant has failed. The mother seeks her costs. In the usual course of events each party should bear their own costs (ss 117(1)) unless (s 117(2)) there are circumstances which, by reference to relevantly s 117(2A), justify an order for costs. The appellant has been wholly unsuccessful. The appeal is from interim orders applicable by their terms for a period of about six months, and which by their terms contemplate a family report. Interviews for that report within a short time of the interim hearing would canvass the issues at the heart of the interim orders the subject of the appeal.
59.The appeal always enjoyed little prospects of success. An affidavit filed by the mother in support of her application for costs exhibits two letters seeking that the father withdraw his appeal and asserting that the appeal had little merit. The father nevertheless proceeded.
60.I consider those circumstances justify an order for costs.
61.In making such order for costs, as I consider just, I take account of the fact that the father points (via his counsel from the bar table) to difficulties in his financial circumstances. The mother does not work remuneratively.
62.The Full Court said in Lenova & Lenova(Costs) [2011] FamCAFC 141:
11.A timely offer in writing genuinely made might, then, be seen as an important part of a limited armoury available to prospective litigants seeking to avoid the costs of litigation. Conversely, where, consequent upon success in an action, a litigant can point to the making of a genuine and timely offer having been made, that offer might be seen as an important (albeit not the only) matter in the exercise of the discretion as to the ordering of costs.
12.That consideration must, of course, be balanced against a litigant having a limited capacity to meet a costs order, as well as any other relevant considerations. But, a limited financial capacity to meet an order can not be determinative; if it were, a party would always be able to plead impecuniosity as a means of avoiding a costs order in circumstances where pursuit of the litigation has continued in the face of a reasonable offer to cease that litigation and the incurring of its attendant costs.
63.In all of the circumstances I consider it just that the father pay the wife's costs of and incidental to the appeal. The affidavit of the solicitor for the mother deposes to an amount of costs sought. There was no reasonable opportunity for the father to respond to that affidavit insofar as it deposes to the quantum of costs. In those circumstances I do not consider it just to fix the costs in that amount, nor do I consider it appropriate to comment on the reasonableness or otherwise of those costs - that is a matter to be considered by the father and those advising him or, ultimately, formal assessment if agreement as to a figure is not reached.
64.May J ordered that the costs of and incidental to the application for expedition be reserved to this Court. For the above reasons I consider that there are circumstances which justify the father paying the costs of that application and that an order to that effect is just. I order accordingly.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 5 December 2014.
Associate:
Date: 13 January 2015
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