WARHURST & LANDY
[2014] FamCAFC 201
•21 October 2014
FAMILY COURT OF AUSTRALIA
| WARHURST & LANDY | [2014] FamCAFC 201 |
| FAMILY LAW – APPEAL – CHILDREN – Where the father has sole parental responsibility – Where the mother is to spend time with the child at the discretion of the father –Whether the trial judge prejudged the issues – Where the mother was self-represented – Where the trial judge’s comments were forceful – Whether a fair-minded lay observer might reasonably apprehend bias – Whether there is a logical connection between the trial judge’s comments and statements which would cause a divergence from deciding the case on merit – Where the mother has not established apprehended bias or prejudgment – Appeal dismissed. FAMILY LAW – APPEAL – CHILDREN – Whether the findings of fact were supported by the evidence – Whether a finding was wrong – Where the trial judge’s findings of fact were reasonably open to her on the evidence – Appeal dismissed. FAMILY LAW – APPEAL – CHILDREN – Exercise of discretion – Where the trial judge made a finding of unacceptable risk – Whether the trial judge failed to take into account important matters when determining the best interests of the child – Appeal dismissed. FAMILY LAW – COSTS – Whether each party should bear his or her own costs – Where the mother was self-represented – Where despite the financial circumstances of the mother a costs order is warranted. |
| Family Law Act 1975 (Cth): ss 117, 69ZN |
| Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Edwards v Noble (1971) 125 CLR 296 Johnson v Johnson (2000) 201 CLR 488 Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 |
| APPELLANT: | Ms Warhurst |
| RESPONDENT: | Mr Landy |
| INDEPENDENT CHILDREN’S LAWYER: | Mark Ambrose Whelan |
| FILE NUMBER: | DUC | 119 | of | 2008 |
| APPEAL NUMBER: | EA | 4 | of | 2014 |
| DATE DELIVERED: | 21 October 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace, Ryan & Murphy JJ |
| HEARING DATE: | 4 September 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 9 December 2013 |
| LOWER COURT MNC: | [2013] FCCA 2101 |
REPRESENTATION
| THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Ms Webb |
| SOLICITOR FOR THE RESPONDENT: | Mason Manwaring |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Gillies |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mark Whelan |
Orders
The appeal against the orders of Judge Henderson made on 9 December 2013 is dismissed.
The appellant mother to pay the respondent father’s and the Independent Children’s Lawyer’s costs of and incidental to the appeal as agreed and in default of agreement, as assessed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Warhurst & Landy 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 4 of 2014
File Number: DUC 119 of 2008
| Ms Warhurst |
Appellant
And
| Mr Landy |
Respondent
REASONS FOR JUDGMENT
Ms Warhurst (“the mother”) appeals against parenting orders made by Judge Henderson on 9 December 2013. The orders relate to X, the child of her relationship with Mr Landy (“the father”).
Her Honour ordered that the father have sole parental responsibility for the child, that the child live with the father and that any time that the child spends with the mother be at the discretion of the father. Her Honour further enjoined the mother from contacting the child’s school, the Department of Human Services (“the Department”) or the police in relation to the child. When complaints were first made by the mother, the relevant Department was known by this name. Subsequently, the Department was renamed as the Department of Community Services.
Background
A complex history sat behind her Honour’s findings and we will set out some of that history in order to give an understanding of her Honour’s reasons and to give context to the issues raised in the appeal. The current proceedings were commenced by Application filed by the father in August 2011.
In December 2004 the mother commenced proceedings concerning the child in the Local Court in country NSW and, on 27 May 2005, that court made orders that the child live with the father. That same day, the mother notified the Department alleging that the father had encouraged the child to engage in sexual behaviour with the father’s then partner. An investigation followed. The child was interviewed by the Joint Investigation Response Team (“JIRT”) and the allegations were not substantiated.
The proceedings between the parties were transferred to the Federal Magistrates Court and on 12 September 2006 orders were made with the consent of the parties that the child live with the mother and spend each weekend with the father. Those orders also restrained the mother from changing where the child lived by leaving the area of rural New South Wales where she and the child were then living.
In January 2008 the mother sought the father’s permission to move from her place of residence to a town further away. The father declined to give his permission. In her Honour’s words at [54] “[a]lmost immediately” the mother refused to permit the child to spend time with the father, alleging that the child was afraid of the father, that the father had been violent to the child and that the child had threatened to harm himself if he was obliged to spend time with the father.
Further proceedings followed in which the mother was found to have contravened the earlier orders of 12 September 2006.
In January 2011, the mother complained to the Department that the child said that the father had run the car over his foot to punish him. The child was again interviewed by JIRT, the allegations were unable to be substantiated and no further action was taken regarding the complaint. Again in her Honour’s words at [64], “…shortly after these allegations were made…”, in late January 2011 the mother absconded with the child and, in breach of the orders made on 12 September 2006 established a home a very long way from the area where they and the father then lived. They were not found until mid-2011. The child spent no time and had no contact with the father between January and November 2011. The mother argued that she took that action because the child was afraid of the father and because, she said, the father made death threats to her.
On 14 November 2011, a recovery order was made in relation to the child and it was ordered that he be placed in his father’s care. Once the child was returned to the care of the father he spent no time with the mother between November 2011 and April 2012.
In March 2012, after an interim hearing, a Federal Magistrate made orders that the child live with the father, that the father have sole parental responsibility for the child and that the child spend time with the mother in the school holidays.
On 16 January 2013 the mother alleged that the child had acted inappropriately with another child and touched her on the thigh. The complaint was referred to the Department and to the police. Nothing came of the complaint because the mother of the child, who it was said had been inappropriately touched, declined to allow the child to be interviewed.
On 31 January 2013, the mother made a complaint to the police that the child had said that he did not touch the other child on the thigh but had licked her genital area. The mother further asserted that her child claimed to have watched pornography while at his father’s house where he had also seen people having sex.
The child was interviewed by JIRT and no action was taken as a result of the mother’s complaint.
None of the mother’s complaints to the Department or the police have been substantiated.
The primary judge had the advantage of four family reports prepared by an expert, Mr W, who considered the mother’s allegations about the father’s conduct and the extent to which she involved the child in ongoing investigations. Mr W’s reports were prepared between March 2006 and September 2013. Her Honour said of Mr W’s first report at [97]:
Mr [W] further reports :
Even if one accepts that [the mother] did not manufacture these allegations, her willingness to accept such extraordinary claims at face value, notify them to the police and child protection authorities thereby causing [the child] to be repeatedly interviewed about these allegations by JIRT, suggests she is prepared to expose [the child] to a form of process abuse in the greater cause of having him returned to her care and, possibly, seeking to terminate his relationship with his father. Furthermore, there are strong indications that [the mother] and her partner continue to denigrate [the father] verbally in [the child’s] presence by referring to him using the pejorative term “scum”.
At [261] her Honour referred to Mr W’s final report in which he said:
Collectively, these inconsistencies suggest the mother has employed a scattergun approach to the making of allegations about [the child’s] safety whilst in the father’s care in the hope some of them will stick. On the contrary, the claims of JIRT, the Department of Community Services, Family and Community Services and NSW police and even the Local Court Magistrate in [NSW] collectively form a view that [the mother’s] allegations are unreliable and on some occasions have been manufactured by her for partisan family law purposes.
These are extremely serious claims. If the court had formed the view they had any validity whatsoever, I imagine it could well decide that [the child] needs to be protected from what would be a very toxic and manipulative influence in his life.
Her Honour found:
141. Thus in the father’s household we have a father who has learnt the error of his ways and has retrieved the situation for himself and his son. A father only focused on his son’s best interest and not his own needs, with a supportive, insightful and impressive wife. Additionally, [the child] has loving and caring paternal grandparents and a grandfather who is much focused on protecting his grandson.
142. In the mother’s household we have this severely dysfunctional parent who is unable or unwilling to filter fact from fiction, is willing to sacrifice her son to gain what she wants namely him living with her and having no time with his father, and a partner who although has much to offer the child, has been embroiled in her web of intrigue and deceit.
143.There is no contest. Mr [W] recommended the child’s best interests can only be promoted and protected if he remains in his father’s care which is the position the mother adopted at the close of the hearing as she knew her residence application case was untenable.
144. The issue now is should [the child] spend any time with his mother. Mr Dalzell said this is unacceptable risk case going into the future and this is correct.
145. … The risks as found all emanate from the mother’s conduct, choices and behaviours and no one else.
146. The risks into the future are in part informed by the risk he has been exposed to in the past and the correct assessment of Mr [W] that he doubts the mother has the capacity to change.
Her Honour referred again to the opinion of the expert at [204] where he said:
I consider [the mother’s] attitude and behaviour has not only been unhelpful to [the child], it has probably been emotionally and psychologically destabilising to him, and her attitude and behaviour may well constitute a toxic, negative and manipulative influence from which [the child] may need to be protected.
Although her Honour accepted that the child would benefit from a meaningful relationship with his mother, she concluded that the relationship would expose him to an unacceptable risk through the mother’s “…toxic manipulative influences…” which her Honour found the mother brought to bear on the child [262].
She said:
7.I have formed the view, after hearing the evidence and for the reasons which will follow, that the child spending any time with his mother, either by way of face to face time or communication in any form has, and will continue, to expose him to an unacceptable risk of harm from the mother.
8.The unacceptable risk of harm comes from the consequences falling upon the child of the mother’s behaviour, choices and how she chooses to discharge her parenting obligations.
9.Firstly, [the child] has been subjected to three JIRT interviews commencing when he was 4 years of age and all three have their origins in allegations made by the mother. The first two interviews were as a direct result of the mother’s reporting of alleged behaviours of her son and others to authorities.
10.The third interview in February 2013 was as a result of allegations made by others concerning the child’s behaviour however the mother has compounded the risk to [the child] by her embellished and most concerning further allegations of the child’s behaviour to authorities.
After referring to what her Honour found was the mother’s pressure on the child to express a preference as to where he wanted to live [11], his mother’s and her partner’s use of insulting and derogatory terms to describe the father [12] and the child’s poor school attendance while living with her [13],
her Honour concluded:
14. Fifthly, the mother has prioritised her needs, desire to have the child live with her and be estranged from his paternal family over the child’s most basic needs and has to use the words of Mr [W] in his report of 29 March 2006, carried out what Mr [W] foretold and I quote:
[The mother] appears so intent upon regaining residence of [the child] that she is prepared to engage in the seemingly deliberate and damaging tactics to achieve that end.
The appeal
The mother appeared for herself on the appeal and drafted the Notice of Appeal. We set out the grounds of appeal in full.
1. The Judge was prejudiced and biased.
2. The Judge made a finding of facts/fact on an important issue couldn’t be supported by the evidence [sic].
3. The Judge exercised her discretion to arrive at a decision which was clearly wrong.
4. The Judge had already made her decision on the outcome of the case before hearing the case.
Bias and prejudgment - Grounds 1 and 4
The mother’s written submissions do not assist in understanding her arguments on appeal. When the hearing commenced, we invited the mother to take the court to the parts of the transcript which she said supported her contention of bias and prejudgment.
We do not propose to set out here all of the passages to which she referred us to but we can fairly illustrate her arguments by reference to some.
When the hearing commenced, her Honour said to the mother (emphasis added in each case):
HER HONOUR: I need to tell you a few things and the few things are that if I – when we hear this matter, come to the same conclusions and set the recommendations of the family report writer, and I am of the view that your attitude to this child having a relationship with his father is – is as poor as it is, then I would be able under the Family Law Act to find that you are the one who has abused the child and I might make an order that you spend absolutely no time with him. … but it is fairly clear that there has been a bit of a campaign by waged here to have your son live with you. That is improper under the Family Law Act.
…
HER HONOUR: Certainly, people can present their case. Certainly, people can bring an application. But there is clear evidence that you have stressed your son. You’ve involved him in the proceedings. He has referred a few times to you calling his father a scum. And, in particular, his warm, positive, happy relationship with his father, his partner and her son is in direct contradiction to what you say.
(Transcript, 28 October 2013, page 2 line 19)
Her Honour said to the mother:
HER HONOUR: What is the evidence, apart from your own affidavit and the family report, that you’re going to present to me that would cause me to change this child’s living arrangements where, I apprehend, he’s flourishing and he’s doing very well indeed? What is it that you’re going to show me or give me that would make me change my mind?
(Transcript, 28 October 2013, page 6 line 1)
Her Honour continued:
HER HONOUR: All right. Okay. Has anybody ever told you of the possibility that I would be able to make an order you spend no time with your son because Mr [W] spoke about that consequence. That’s one of the options.
[THE MOTHER]: I read that in the family report. That’s correct
HER HONOUR: Well, that’s something I can do, you know, and I might do it because if I find also that you are implacably opposed to your son living with his dad and you just can’t support him doing that and you can’t protect your son from your own negative views, I might find that’s more harm to him than not spending time with you.
…
HER HONOUR: That’s one of the balances I’ve got to look at. The impact of him spending time with you versus destabilising him in his current environment. Do you understand that?
[THE MOTHER]: Yes, I do, your Honour.
HER HONOUR: And you understand how that works under the Act?
[THE MOTHER]: Yes, I do.
(Transcript, 28 October 2013, page 6 line 33 to page 7 line 9)
As might be expected from an unrepresented litigant, the mother did not distinguish between her (apparent) claim that the primary judge was motivated by actual bias toward her and a claim that the primary judge was disqualified by reason of apprehended bias taking the form of prejudgment. As the mother’s argument unfolded, it seemed abundantly clear that it was the latter which was alleged by her.
It must be understood that her Honour had read, prior to the commencement of the trial, a substantial amount of evidence contained in each of the parties’ affidavits and in opinions expressed in the four family reports. That evidence contained, uncontroversially, a history which raised starkly, a number of issues directly relevant to the child’s best interests.
While her Honour’s comments were forcefully expressed and would perhaps cause a self-represented litigant concern that she had reached a concluded view of the issue, it is important to consider both the time at which the comments were made and the qualified way in which they were expressed which we have exemplified in the emphases given to the passages quoted above. These comments by her Honour were, in effect, indicating to the mother, at the beginning of the hearing, the serious issues that needed to be addressed in the hearing before her. It was appropriate for her Honour to give an indication to the self-represented mother of the matters which would loom large in the hearing and determination of the child’s best interests and all the more so in light of the serious issues revealed by the evidence which were directly relevant to the child’s best interests.
To similar effect, the mother further contended that other comments by
her Honour during the evidence of her partner reflected a concluded view as to the outcome. During cross examination of her partner, the issue of the child’s name being considered for inclusion on a list of juvenile paedophiles was raised. Her Honour expressed the view that the very consideration of that course was “shocking” and said to the mother’s partner:
HER HONOUR: … Because I might be entitled to draw the conclusion that the mother’s desire to have the child live with her is so strong she will put her child in harm’s way. And if I find that that is the case and that is how the evidence falls at the end of this hearing, I may be left with absolutely no option but to cease this boy spending time with you and his mother and his [brother]. (our emphasis)
…
(Transcript, 29 October 2013, page 27 line 30)
By way of final example, the mother contended that her Honour’s questions to the expert witness demonstrated that her Honour had already decided the issue of where the child was to live.
Her Honour asked questions of the expert. She said:
HER HONOUR: … It’s not the parents having conflict. Where the risk of harm lies – and I will tell you now, Mr [W], this is a risk of harm case, as far as I’m concerned. It’s a risk of harm case. The risk is to [the child] in spending time with his mother, which would permit her to raise further allegations about [the child’s] behaviour or his father’s behaviour or someone else’s behaviour towards [the child], such that this child faces the possibility of being interviewed by JIRT, being on a sexual – a whole range of things are happening. And it comes from the mother’s allegations, it does not come from anything in the father’s home. All this that [the child] has been through has come from allegations by the mother or people involved with her and [mother’s partner]. So if I find that those allegations are untrue, not substantiated, the question is should [the child] be spending time with his mother? … …
(Transcript, 30 October 2013, page 45 line 30)
Again, the mother’s assertions in each of those two additional transcript extracts, that her Honour’s comments demonstrate a prejudgment or bias, must be understood in the context earlier described. The process of judicial decision-making, particularly where the ultimate issue is the best interests of a child, frequently involves a process of forming and re-forming preliminary views instructed by the evidence. Further, her Honour was mandatorily required to “actively direct, control and manage the conduct of the proceedings” before her (s 69ZN(4) of the Family Law Act 1975 (Cth) (“the Act”) and that can frequently involve a judge testing relevant alternative propositions or outcomes.
The difference between her Honour’s words and conduct and those which might attract the intervention of this Court by reason of apprehended bias through pre-judgment is encapsulated by what Gleeson CJ and Gummow J said in Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 at 532:
… The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.
(Emphasis added; footnotes omitted)
In Johnson v Johnson (2000) 201 CLR 488, the plurality (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) quoted Anderson J from the proceeding below at 492:
11.… It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
(emphasis added)
The relevant appellate hurdle for the mother was, first, to establish that
her Honour’s comments and statements reflected a concluded and implacable view and which were such that a fair-minded lay observer might reasonably apprehend that the judge would not bring an open mind to determining the issues and, secondly, the demonstration of a logical connection between the judge’s comments and statements which would cause a divergence from deciding the case on its merit (See, for example, Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, at 344-349).
Neither of those two matters has been established.
While reasonable minds might differ about the prudence of expressing her views with such apparent strength, especially where one party to the proceedings is unrepresented, we are unpersuaded that her Honour’s comments were other than appropriately directed and do not reflect either apprehended bias or demonstrate prejudgment of the issues.
These two grounds of appeal are not made out.
Findings of fact unsupported by the evidence – Ground 2
The mother argues that while the matter commenced as a dispute between the parties as to where the child would live, it developed into a case involving the assessment of risk to the child of spending time with the mother. She argued that the finding that the child was at risk of harm if he spent time with her was not able to be supported on the evidence.
While so far as she and, perhaps even the father was concerned, the issue central to their dispute was where the child would live, that decision could not be decided in a vacuum. It must be remembered that proceedings in this court concerning the welfare of children are not adversarial and that the judge is concerned to make orders that will be in the child’s best interests. The background history of the matter involving frequent reports of sexual and other misconduct by the father towards the child and the consequent intervention of the Department and/or the police were matters squarely relevant to a determination of the child’s best interests.
Before an appeal court will interfere with a judge’s finding of fact it must be demonstrated that the finding was wrong (see Edwards v Noble (1971) 125 CLR 296 at 304).
The evidence before her Honour and to which she referred in her reasons provided a compelling foundation for her findings about the risk to the child in the mother’s care. The findings were not wrong in the appellate sense; in our view, they were the only findings reasonably open to her Honour on the evidence before her.
This ground is not made out.
The exercise of the judge’s discretion was wrong – Ground 3
The mother’s summary of argument would appear to contend that her Honour, in coming to the decision that the child should live with his father and spend no time with her, was wrong because the primary judge failed to take into account the child’s best interests and ignored his views. She further asserted that the primary judge failed to take into account relevant provisions of the Act.
At [263] and following, the primary judge considered the relevant provisions of the Act and directly considered the child’s views.
She concluded that the presumption of equal shared parental responsibility was rebutted and gave reasons for that finding at [274] to [277]. Her Honour found that the child benefits from a meaningful relationship with both the mother and father but that the cost to the child of having that relationship with the mother posed an unacceptable risk to his welfare because of the mother’s behaviour. Her Honour said:
285.The evidence of the risk to [the child’s] welfare from time with or communication with his mother is overwhelming. If [the child] spends time with or communicates with his mother in any way she will continue to expose him to her propensity for making false allegations about the father or his own behaviour, pressuring him to choose one parent over the other, continue to denigrate his father and family and fill his head with notions such as set out in
Mr [W’s] report, paragraph 27:Mum said when I’m old enough. Apparently it’s 13. You can make a decision about where you live.
Her Honour said:
289. If [the child’s] emotional and psychological functioning is to be protected and the possibility of being placed on a young persons sexual offence register be extinguished he can spend no time with or communicate with his mother unless she undergoes significant and permanent behavioural change and Mr [W] expressed concern that the mother had no capacity to change.
Her Honour noted that the child had, on a number of occasions said that his mother asked him to choose between her and the father. Very significant to
her Honour’s findings and ultimate conclusion about risk of harm, the primary judge further noted that the child then said: “But I don’t want to choose between my parents” [105].The primary judge recounted a recorded telephone conversation between the child and the mother which took place on 15 March 2013.
176. Friday, 15 March:
[X], be serious. Would you rather live up here where you can have fun and be the family, and go to a great school, or stay down there with the scums where they don’t care about you, and are dirty, filthy scums, where it’s better for you and this is where your family is, not down there. Come on, [X], just tell me this. You want to be here with you – the scum.
Could I just not answer, okay, Mum?
I want to know the answer to the question.
And the child says:
How would you like to be put between the parents, Mum? I don’t want to pick, okay, can you drop it.
And the mother says:
So you picked the scum this time.
(emphasis as per original)
The primary judge referred to the evidence of the expert that the child preferred to live with his father but was anxious about how the mother would react when she found out [183].
Her Honour said:
291. The wishes of the child. [The child] expressed a wish to spend time with his mother. He enjoyed the holidays. However, wishes of a child are not always determinative of these proceedings.
Her Honour’s finding is, in our view, entirely consistent with the evidence before her and to which we have made brief reference. It was apparent that the child had been put in the invidious position by the mother of having to express a preference as to where he wanted to live, and it is further apparent from the evidence that that preference was expressed differently when the child spoke to Mr W. This evidence, of itself, would cause a court to be cautious of accepting, at face value, what the child was reported to have said to the mother.
We observe that an Independent Children's Lawyer was appointed in this matter and appeared before her Honour. The role of the Independent Children's Lawyer is, inter alia, to represent the child’s interests and ensure his views were fully before the court. The Independent Children's Lawyer, who appeared on the appeal, did not support the mother’s assertion that her Honour had either failed to take the child’s views into account or had failed to give them appropriate weight. We agree.
Further, as her Honour correctly said, the child’s views were not determinative of the conclusions as to his best interests nor of the orders which followed from that determination. That consideration needed to be balanced with all of the other relevant statutory considerations
We do not accept the mother’s contention that the primary judge failed to take into account important matters in determining the best interests of the child. Neither do we accept that her Honour’s discretion miscarried.
This ground is not made out.
The appeal will thus be dismissed.
Costs
As usual, we heard costs submissions at the conclusion of the appeal proceedings to save the time, trouble and expense of making those submissions after judgment was delivered.
In the event that the appeal failed, the father and Independent Children's Lawyer sought an order for costs against the mother.
The starting point for a discussion of costs is s 117(1) of the Act and the guiding principle of that section is each party to proceedings under the Act should bear his or her own costs unless the court is of the opinion that there are circumstances that justify the making of a costs order s 117(2). Where the court is of the opinion that the circumstances justify the making of a costs order, s 117(2A) sets out matters to which the court should have regard in determining what, if any, order should be made.
The matters relevant to a consideration of costs in this matter referred to in
s 117(2A) are; the financial circumstances of each of the parties s 117(2A)(a); and whether a party to the proceedings has been wholly unsuccessful
s 117(2A)(e).
There is no doubt that the mother has been wholly unsuccessful in her appeal.
The mother said that she is awaiting a knee replacement. She lives with her partner, his two children and their seven month old child. Her partner is an arborist. While she gave no details of his income, we do not imagine it to be significant. The mother also receives some government benefits.
That a person is impecunious is not a bar to the court making a costs order if the court is of the opinion that the order ought otherwise be made.
In this case, we will order the mother to pay the costs of the father and the Independent Children's Lawyer of the appeal.
I certify that the preceding sixty seven (67) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Ryan & Murphy JJ) delivered on 21 October 2014.
Associate:
Date: 21 October 2014
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