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Saturday, November 24, 2012

FAMILY LAW ─ APPEAL ─ CHILDREN ─ Appeal against interim orders of Federal Magistrate made in parenting proceedings ─ Whether the Federal Magistrate gave excessive or impermissible weight to what he perceived to be the “child’s presumed attachment to the former matrimonial home” ─ Where it was clear beyond doubt from the transcript of the interlocutory hearing, and the reasons for judgment of the Federal Magistrate, that his Honour was acutely aware that the critical issue was whether the child should continue to spend substantially equal time with both parents, albeit in different homes, or spend more time with the mother in the home in which the child had spent most of his life ─ Where in the absence of any evidence establishing that the Federal Magistrate could not reasonably have afforded the weight he did to the factors which led to his conclusion, the challenges to the Federal Magistrate’s decision fail ─ Where the Court was not persuaded, either by reference to the terms of the Family Consultant’s memorandum, or the learned Federal Magistrate’s reasons for judgment, that his Honour materially mistook or misunderstood what the Family Consultant had said, or not said, in her memorandum ─ No Appealable error demonstrated ─ Appeal dismissed.


[2012] FamCAFC 185  Coversheet and Orders Page 1
FAMILY COURT OF AUSTRALIA
CARR & CARR  [2012] FamCAFC 185
FAMILY LAW  ─ APPEAL  ─ CHILDREN  ─ Appeal against interim orders of
Federal Magistrate made in parenting proceedings ─ Whether the Federal Magistrate
gave excessive or impermissible weight to what he perceived to be the “child’s
presumed attachment to the former matrimonial home” ─ Where it was clear beyond
doubt from the transcript of the interlocutory hearing, and the reasons for judgment of
the Federal Magistrate, that his Honour was acutely aware that the critical issue was
whether the child should continue to spend substantially equal time with both parents,
albeit in different homes, or spend more time with the mother in the home in which
the child had spent most of his life  ─ Where in the absence of any evidence
establishing that the Federal Magistrate could not  reasonably have afforded the
weight he did to the factors which led to his conclusion, the challenges to the Federal
Magistrate’s decision fail ─ Where the Court was not persuaded, either by reference
to the terms of the Family Consultant’s memorandum, or the learned Federal
Magistrate’s reasons for judgment, that his Honour  materially mistook or
misunderstood what the Family Consultant had said, or not said, in her memorandum
─ No Appealable error demonstrated ─ Appeal dismissed.
FAMILY LAW ─ APPEAL ─ COSTS ─ Where the appeal was wholly unsuccessful
─ Where given the hurdles to success of challenges, particularly in an interlocutory
context where no evidence has been tested, or sought to be tested, the father was
deemed to have persisted with his appeal notwithstanding that success with his appeal
was problematic  ─ Where the circumstances of this case justified the making of a
costs order in favour of the mother.
Family Law Act 1975 (Cth) Part VII, ss 60CC, 65DAA, 65DAA(5), 117(2A)
Edwards v Noble (1971) 125 CLR 296
Gronow v Gronow (1979) 144 CLR 513
MRR v GR (2010) 240 CLR 461
APPELLANT:  Mr Carr
RESPONDENT:  Ms Carr
FILE NUMBER:  PAC 1406 of 2012
APPEAL NUMBER:  EA 93 of 2012
DATE DELIVERED:  14 November 2012 [2012] FamCAFC 185  Coversheet and Orders Page 2
PLACE DELIVERED:  Sydney
PLACE HEARD:  Sydney
JUDGMENT OF:  Coleman J
HEARING DATE:  12 November 2012
LOWER COURT JURISDICTION:  Federal Magistrates Court
LOWER COURT JUDGMENT DATE:  15 June 2012
LOWER COURT MNC:  [2012] FMCAfam 578
REPRESENTATION
COUNSEL FOR THE APPELLANT:  Ms Gillies
SOLICITOR FOR THE APPELLANT:  Mahony Family Lawyers
COUNSEL FOR THE RESPONDENT:  Ms Kennedy
SOLICITOR FOR THE RESPONDENT:  Bahlmann Burke Lawyers [2012] FamCAFC 185  Coversheet and Orders Page 3
ORDERS
(1) That the appeal be dismissed.
(2) That the appellant father pay the respondent mother’s costs of and incidental to
the appeal as agreed or assessed on a party and party basis.
IT IS NOTED that publication of this judgment by this Court under the pseudonym
Carr & Carr has been approved by the Chief Justice pursuant to s 121(9)(g) of the
Family Law Act 1975 (Cth). [2012] FamCAFC 185  Reasons Page 1
Appeal Number: EA 93 of 2012
File Number: PAC 1406 of 2012
Mr Carr
Appellant
And
Ms Carr
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
1. By Notice of Appeal filed 12 July 2012 Mr Carr (“the father”) appealed against
interlocutory parenting orders made by Foster FM on 15 June 2012 in parenting
proceedings pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”)
between the father and Ms Carr (“the mother”).
2. The interlocutory orders of the Federal Magistrates Court provided that the
parties have equal shared parental responsibility for their child A born in 2006,
and is thus aged six years of age.
3. The orders provided that the child reside with the mother and spend time with
the father during school term, on alternate weekends from after school Friday
to 6:30 pm Sunday, from after school each Tuesday until the commencement of
school Wednesday, and from after school each Thursday, and each alternate
Friday until 6 pm.
4. In lieu of the orders of the Federal Magistrates Court, the father sought that,
during school term, the child spend each alternate week from the conclusion of
school Wednesday to 7 pm Sunday, and each alternate weekend from the
conclusion of school Wednesday to 10 am Saturday morning.
5. The mother resisted the father’s appeal and sought to maintain the orders of the
Federal Magistrates Court.
6. The proceedings await trial in the Federal Magistrates Court. Counsel for the
parties informed the Court that the proceedings will next be before the Federal
THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY [2012] FamCAFC 185  Reasons Page 2
Magistrates Court in March 2013 for the release of  an anticipated Family
Report and allocation of trial dates.
BACKGROUND
7. The father is 44 years of age and the mother is 41 years of age. Both parties
have tertiary qualifications.
8. The parties commenced cohabitation in about October 2000, married in 2002,
and separated under the one roof from late 2011 or  early 2012. The father
vacated the premises in which the parties and their child had lived since 2007
in April 2012. Both parties contributed substantially to the care of the child
prior to separation.
9. At the interim hearing, the father sought that the child spend substantially equal
time with each parent. The mother sought orders in  substantially the terms
ordered by the learned Federal Magistrate, save in  relation to the mid-week
overnight time which his Honour ordered that the child spend with the father.
10. At the interim hearing neither parent raised serious allegations of inappropriate
parenting on the part of the other party.
11. The parties attended a child dispute conference on 28 May 2012. The Family
Consultant who conducted such conference produced a memorandum which
was in evidence before the learned Federal Magistrate.
12. The Family Consultant’s memorandum recorded that it was agreed that both
parents retain equal shared parental responsibility for their child but:
No agreement was able to be reached about [A’s] parenting arrangements
in the interim or the long term. Both parents were encouraged to consider a
compromise to their currently held positions, particularly in terms of
possible interim arrangements. This is because, while the parents remain
living separately under the same roof, it remains somewhat “hypothetical”
as to how [A] will manage the inevitable changes that will be required
when he is no longer living under the same roof as both parents. For young
children in such circumstances, the optimal outcome is for an interim
arrangement to be reached by the parents and for such an arrangement to be
modified dependant upon the child’s adjustment to the changes.
13. The “Case Pathway Recommendations” of the Family Consultant recorded:
Referral to community based organisation: Ideally, this is a situation
where it would be preferable for the parents to work with a community
agency (such as Relationships Australia) to develop of [sic] parenting
arrangement that is reviewed and monitored in accordance with [A’s]
adjustment to changes in his care. (Original emphasis)
14. Having recounted a number of s 60CC(3) factors which did not materially
favour either party’s proposals, the learned Federal Magistrate, under the [2012] FamCAFC 185  Reasons Page 3
heading: “The likely effect of any changes to the child’s circumstances
including the likely effect on the child of any separation from either of his or
her parents or any other child or other person with whom he or she has been
living”, recorded:
58.  This is a significant factor in considering interim orders to be made. The
child will move from a situation of having both parents in his home to one
where the Father will be absent from that home. The child is in a settled
physical environment where no doubt he feels secure. A substantial
dislocation of that environment calls for careful consideration.
15. His Honour further recorded:
60. The impact on the child of a significant physical dislocation, of the child
from his well settled physical environment, as sought by the Father, and the
more limited time with the Father, sought by the Mother, present issues that
impact on the welfare of the child. The consultant urges caution and a more
moderated approach to ease the child into what may  be appropriate long
term parenting arrangements. The child’s reaction to the physical
separation of the parents is problematic and needs  to be monitored
carefully.
16. The other factors to which the learned Federal Magistrate then referred were
not considered to materially advantage either party’s proposals. It is not
seriously in doubt that the passages which were pivotal to the learned
Federal Magistrate’s decision were those set out above.
THE GROUNDS OF APPEAL
Ground 1
17. Ground 1 of the father’s Notice of Appeal provided:
1.  The Honourable Federal Magistrate erred in his application of the
principles of Goode v Goode.
18. Whilst it was conceded by Counsel for the father in oral submissions before
this Court that the learned Federal Magistrate had  not erred in principle in
determining the interlocutory proceedings before him, it was submitted that
his Honour had “failed to properly consider the question of equal time and in
doing so failed to follow the legislative pathway”.
19. It was further submitted in support of this challenge that:
14.  … in terms of the Section 60CC factors the learned  Federal Magistrate
failed to properly consider each of the relevant factors and apply them to
the circumstances of this particular case. [2012] FamCAFC 185  Reasons Page 4
20. As is readily apparent, and Counsel for the father, who was not his Counsel in
the court below, readily acknowledged, the thrust of this general complaint is,
in reality, articulated in the submission on behalf of the father that:
16.  … where the learned Federal Magistrate placed significance on the child’s
presumed attachment to the former matrimonial home  that was not a
relevant factor or a factor that should have been prioritised above the
legislative presumption of the child spending equal time with each parent.
With respect to Counsel for the father, and accepting that so submitting must
have been inadvertent, there is no legislative or other “presumption of the child
spending equal time with each parent”.
21. Section 65DAA of the Act mandates that where an order for equal shared
parental responsibility is made, as clearly was so in this case, the Court must
consider (emphasis added) whether an order for equal shared parental time is
in the best interests of the child and reasonably practicable, each of those
matters being determined by reference to the relevant statutory provisions,
most notably s 65DAA(5) (“reasonable practicability”) and s 60CC (“best
interests”).
22. In oral submissions, Counsel for the father, sensibly, acknowledged that the
“child’s presumed attachment to the former matrimonial home” was a “relevant
factor”. Properly understood, and necessarily so in the context of this appeal,
the substance of the challenge agitated pursuant to this ground is that the
learned Federal Magistrate gave excessive or impermissible weight to what he
perceived to be the “child’s presumed attachment to the former matrimonial
home”.
23. In the light of Counsel for the father’s submissions, which, whatever their
success, focussed on what is clearly the only possible avenue for appellate
intervention, the substance of grounds 1 and 2 substantially overlaps. It is
convenient and appropriate to deal with those two grounds in conjunction.
Ground 2
24. Ground 2 of the Notice of Appeal provided:
2.  The Honourable Federal Magistrate erred in placing weight on the child’s
ongoing residence in the family home.
25. In reality, it is in the context of the submissions in support of Ground 2 that the
success or otherwise of the challenges articulated in grounds 1 and 2 falls to be
determined. It was submitted on behalf of the father that:
18.  From the outset of the hearing the learned Federal Magistrate indicated that
he was concerned that the father’s proposal would remove the child “on an
interlocutory basis from the home that the child has known since birth
which is something that was crossing my mind ......”. (Footnote omitted) [2012] FamCAFC 185  Reasons Page 5
26. Before turning to consider the transcript of the proceedings, it is appropriate to
record that there was no cross-examination of either party or the Family
Consultant before the learned Federal Magistrate, and that neither Counsel then
appearing for the parties sought to do so.
27. In opening exchanges with Counsel for the parties, in the passage of transcript
upon which Counsel for the father relied, his Honour said:
… If I could say this, Ms Christie, in relation to your client’s position. It
concerns me that his proposal removes the child on an interlocutory basis
from the home that the child has known since birth which is something that
was crossing my mind, that was all.
28. Properly, Counsel for the father has not submitted that anything there said by
the learned Federal Magistrate revealed any absence of impartiality. Having
regard to the nature of the hearing before the learned Federal Magistrate, and
the issues which were undoubtedly relevant to its determination, to the extent
that, with respect to him, his Honour was doing more than stating the obvious,
no significance should attach to his comments.
29. As Counsel for the father submitted, and the transcript confirms, Counsel then
appearing for the father responded by saying:
I guess I should address that squarely by saying this, your Honour. That it’s
fair to say that even prior to the amendments to the Act, Cowling, Solento
and – surviving the amendments – Goode talk about continuity and
stability being about the relationship between a child and his parents and
not about bricks and mortar.
30. It was further submitted on behalf of the father:
20.  The learned Federal Magistrate returned to the issue of the child remaining
in the home. Variously describing it as a “home base” and remarking that if
the orders contended for by the father were made the child would be living
half his life “away from his own home”. (Footnotes omitted)
31. Counsel then appearing for the father said:
--- with both parents. Now, why – the child need not have a home base and
if we follow the statutory pathway it is quite clear that parliament didn’t
intend that that would be anything which was given any particular primacy
---
32. In the second passage of the transcript upon which  Counsel for the father
relied, the learned Federal Magistrate said:
... The father is moving out to premises unknown to the child and he
suggests that the child should now live half his life away from his own
home. That the wife in fact may acquire in a property – I don’t know. [2012] FamCAFC 185  Reasons Page 6
Although it may not necessarily be the father’s contention that either of those
statements was factually inaccurate, nothing to which the Court has been
referred establishes that either of those statements of fact was erroneous.
33. The position of Counsel then appearing for the father in relation to the learned
Federal Magistrate’s comment could not have been clearer, Ms Christie of
Counsel saying:
Your Honour is giving undue weight to a piece of real estate in preference
to the child having a proper amount of time with each parent.
34. In her closely reasoned submissions, Counsel for the father, at paragraph 21,
referred to the pivotal paragraph in the learned Federal Magistrate’s reasons for
judgment, paragraph 58, the terms of which have been recorded earlier in these
reasons. Counsel for the father then submitted with respect to paragraph 56 of
his Honour’s reasons that:
22.  At this point in the judgment the Court had already found that “the child
has strong and well settled relationships with both parents.” There is no
real consideration in the judgment of the likely effect of the child’s
separation from the father in the context of his “substantial involvement in
the child’s life”. (Footnote omitted)
35. With respect to the ingenuity of this submission, for the learned
Federal Magistrate to have said more than he did in relation to the “likely effect
of the child’s separation from the father”, would have been in the absence of a
sufficient, or perhaps any evidentiary foundation.
36. As the submissions of Counsel for the father assert, and as the learned
Federal Magistrate accepted during the interlocutory hearing, and reiterated in
his reasons for judgment, both parents have been substantially involved in the
care of the child throughout his life. On any view  of it, having lived
substantially if not for the whole of his life in the same house, and with both
parents, the future, in which the parents did not live together, or in the same
house, would be new, and, unable to be known at the time of the learned
Federal Magistrate’s decision.
37. It was then submitted on behalf of the father:
23.  Rather than considering the effect on the child of  seeing his father for
significantly less time than had been the situation prior to separation and
indeed since, the learned Federal Magistrate once again turned to what he
termed the “physical dislocation of the child from his well settled physical
environment”. (Footnote omitted)
38. To the extent that this submission asserts that the learned Federal Magistrate
failed to consider the effect on the child of seeing his father less than he had in
the past, it is clear beyond doubt from the transcript of the interlocutory
hearing, and the reasons for judgment of the learned Federal Magistrate, that [2012] FamCAFC 185  Reasons Page 7
his Honour was acutely aware that the critical issue was whether the child
should continue to spend substantially equal time with both parents, albeit in
different homes, or spend more time with the mother in the home in which the
child had spent most of his life.
39. With respect to Counsel for the father, the learned Federal Magistrate was
obliged in this case to consider the “physical dislocation of the child from his
well settled physical environment”. The weight which could have been given to
those factors was liable to vary from judicial officer to judicial officer. In
Gronow v Gronow (1979) 144 CLR 513 at 519-520 Stephen J said:
The constant emphasis of the cases is that before reversal an appellate court
must be well satisfied that the primary judge was plainly wrong, his
decision being no proper exercise of his judicial discretion. While authority
teaches that error in the proper weight to be given to particular matters may
justify reversal on appeal, it is also well established that it is never enough
that an appellate court, left to itself, would have arrived at a different
conclusion. When no error of law or mistake of fact is present, to arrive at a
different conclusion which does not of itself justify reversal can be due to
little else but a difference of view as to weight: it follows that disagreement
only on matters of weight by no means necessarily justifies a reversal of
the trial judge. Because of this and because the assessment of weight is
particularly liable to be affected by seeing and hearing the parties, which
only the trial judge can do, an appellate court should be slow to overturn a
primary judge’s discretionary decision on grounds which only involve
conflicting assessments of matters of weight. In the present case it should
not have done so at all.
40. Whatever weight was given to those considerations by the learned
Federal Magistrate, it cannot be successfully asserted that his Honour did so in
reliance upon any erroneous finding of fact.
41. The crux of these complaints was articulated in the submission that:
24.  ... the learned Federal Magistrate erred in placing a greater significance of
his inference that the child was quite connected with the home the parties
had previously shared then [sic] the importance of the child’s relationship
with the father.
42. With respect to Counsel for the father, whilst it might be convenient to the
father to see it in such terms, a balanced reading  of the learned
Federal Magistrate’s reasons reveals that his Honour had not “prioritised bricks
and mortar above the child’s relationship with one of his parents”.
43. The learned Federal Magistrate clearly recognised in his reasons for judgment
that determining the interlocutory applications before him involved balancing
the two issues to which this submission refers. Other judicial officers
undertaking that balancing exercise may have reached the conclusion for which [2012] FamCAFC 185  Reasons Page 8
the father’s Counsel contended, but that is not the test for present purposes. As
Barwick CJ in Edwards v Noble (1971) 125 CLR 296 at 304 said:
The question is not whether the appellate court can substitute its view of
the facts which, of course, it is empowered to do: but whether it should do
so. In any appeal against a finding of fact, whether or not by way of
rehearing, however much the appellate court may be in an equal position
with the trial judge as to the drawing of inferences, in my opinion, the
appellate court ought not to reverse the finding of fact unless it is
convinced that it is wrong. If that finding is a view reasonably open on the
evidence, it is not enough in my opinion to warrant its reversal that the
appellate court would not have been prepared on that evidence to make the
same finding. Merely differing views do not establish that either view is
wrong.
44. In the absence of any evidence establishing that the learned Federal Magistrate
could not reasonably have afforded the weight he did to the factors which led to
his conclusion, these challenges fail.
45. A particular matter relied upon in support of these challenges related to the
memorandum of the Family Consultant, in respect of which it was submitted:
26.  Further, the learned Federal Magistrate confused the evidence of the
Family Consultant where he found a cautious approach was to be adopted
to the physical separation of the parents. In his reasons (paragraphs 60 and
74 of the judgment in particular) he appears to see the cautious approach as
being more time in the former matrimonial home rather than ensuring that
the child’s relationship with the father, by maintaining a regime very close
to what had been occurring remained in place.
46. The Court has earlier referred to the relevant portions of the Family
Consultant’s report. In the Court’s view, the report was equivocal in terms of
the decision to be made by the learned Federal Magistrate, and perhaps more
significant by virtue of what it did not record or  recommend than anything
contained in it, most of which could not have been factually controversial.
47. As observed earlier, no one, including the learned Federal Magistrate and the
Family Consultant, could predict how the child would adjust to whatever orders
the Court made, given the major change from living in a house with both his
parents to living in that house with only one parent, and another house with his
other parent.
48. In the paragraphs of the reasons for judgment of the learned Federal Magistrate
to which Counsel for the father referred, his Honour recorded:
60.  The impact on the child of a significant physical dislocation, of the child
from his well settled physical environment, as sought by the Father, and the
more limited time with the Father, sought by the Mother, present issues that
impact on the welfare of the child. The consultant urges caution and a more [2012] FamCAFC 185  Reasons Page 9
moderated approach to ease the child into what may  be appropriate long
term parenting arrangements. The child’s reaction to the physical
separation of the parents is problematic and needs  to be monitored
carefully.

74.  This is not a consideration of substance save for the need to be sensitive to
the child being subjected to any adverse psychological stressors arising
from the parties physical separation and the time arrangements
implemented thereafter.
49. With respect to the submissions of Counsel for the father, whilst it may be that
the Family Consultant’s memorandum could have been interpreted in the way
asserted by her, the Court is not persuaded, either by reference to the terms of
the Family Consultant’s memorandum, or the learned  Federal Magistrate’s
reasons for judgment, that his Honour materially mistook or misunderstood
what the Family Consultant had said, or not said, in her memorandum.
50. As suggested earlier, other conclusions may permissibly have been reached in
reliance upon that evidence, but that does not demonstrate that the conclusion
reached by the learned Federal Magistrate was not reasonably open to him.
51. Notwithstanding the energies of Counsel for the father, who has articulated
everything which reasonably could have been in support of these grounds, the
Court is not persuaded that they have merit.
52. The Court’s conclusions with respect to Grounds 1 and 2 largely suggest the
conclusion the Court would reach with respect to Ground 3.
53. In deference to the submissions of Counsel for the  father, the Court will
however engage with Ground 3 to the extent that it has not inferentially already
done so.
Ground 3
54. Ground 3 of the Notice of Appeal provided:
3.  The Honourable Federal Magistrate erred in giving insufficient weight to
the available evidence of the Family Consultant.
55. The crux of the submissions in support of this ground which have not
previously been considered is:
30.  The clear meaning of that is that [A’s] daily life  was going to change
because both parents would no longer be in the same household with him
each day. That change had to be handled with some sensitivity to how a
child of his age and background would cope with such a significant change.
The family consultant notes (again at page 2) that the child has a “relatively
secure relationship with each of his parents”. She does not seek to prioritise [2012] FamCAFC 185  Reasons Page 10
or make the issue of what parent is to remain in the former matrimonial
home an issue in the determination of care arrangements for [A].
56. With respect to Counsel for the father, the fact that the Family Consultant did
not “seek to prioritise” the outcome for which either parent contended is the
matter of greater significance for present purposes.
57. The reality that the Family Consultant did not, to put it bluntly, give the benefit
of the considerable weight which her opinion was likely to be afforded to the
mother simply meant that, at trial and before this Court, Counsel for the mother
could not rely upon that fact or circumstance as supporting the learned
Federal Magistrate’s decision. The absence of support for the mother’s position
was not support for the father’s submission.
58. The learned Federal Magistrate had to make a decision. As Counsel for the
father correctly submitted, the expert opinion evidence was equivocal, save to
the extent that it recorded, unsurprisingly, that how the child would cope with
any determination by the Court would in the circumstances be “somewhat
‘hypothetical’”.
59. The Court is not persuaded that this ground has merit, either in conjunction
with grounds 1 and 2 or in its own right.
Ground 4
60. Ground 4 of the Notice of Appeal provided:
3.  The Honourable Federal Magistrate erred in the exercise of his discretion.
61. As earlier suggested, and as Counsel for the father sensibly acknowledged, if
the challenges to which the Court has previously referred fail to find favour,
this challenge must also fail.
62. Lest there be doubt about the matter however, the Court is satisfied that the
learned Federal Magistrate did “consider” the matters which he was required to
consider in the light of the decision of the High Court in MRR v GR (2010) 240
CLR 461.
63. In the circumstances of this case, there were, in reality, two competing factors,
the balancing of which were ultimately likely to determine the outcome of the
interlocutory proceedings. They have been referred to earlier in these reasons,
but to reiterate, were the child’s ongoing residence with his mother in the only
home he had ever known on the one hand and, the reality that so doing would
mean that the child spent less time with the father than he ever previously had.
The learned Federal Magistrate carefully considered those factors. Others doing
so may have come to a different conclusion, but that is not the test.
64. For reasons which the Court has earlier articulated, the father has not
demonstrated appealable error in relation to such considerations. [2012] FamCAFC 185  Reasons Page 11
65. As Counsel for the father sensibly acknowledged, Grounds 5 and 6 did little
more than reiterate the substance of earlier challenges. Neither ground could
succeed in isolation.
CONCLUSION
66. No ground of appeal having been made out, the appeal must fail.
COSTS
67. Unsurprisingly, Counsel for the mother sought an order for costs of the appeal
pursuant to s 117(2A) of the Act, on the basis that, as has transpired, the appeal
was wholly unsuccessful.
68. Counsel for the father opposed the making of an order for costs, albeit
conceding, sensibly given the father’s earnings, that lack of capacity could not
assist the father’s resistance to a costs order.
69. Counsel for the father valiantly sought to resist a costs order on the basis that,
albeit not accepted, the submissions on his behalf  raised issues of possible
substance. There is a material distinction between  submissions which have
possible merit and those which, though devoid of possible merit, are cogently
and skilfully agitated. This case falls into the latter category.
70. As is not in doubt, Counsel for the father skilfully agitated what were clearly
the only possible bases for appellate intervention. Given the hurdles to success
of such challenges, particularly in an interlocutory context where no evidence
has been tested, or sought to be tested, the father is deemed to have persisted
with his appeal notwithstanding that success with his appeal was problematic.
71. It is also relevant to the issue of costs to recall that, when the matter was set
down, as is the Court’s invariable practice, the father was reminded of the costs
risk attendant upon persisting with an interlocutory appeal which, if successful,
could only result in the proceedings being remitted for re-determination on an
interlocutory basis, the existing interlocutory orders remaining as, in effect,
interim interlocutory orders, in circumstances where, in all probability, a final
hearing would be available in the Federal Magistrates Court at about the same
time as the re-hearing of the interlocutory proceedings might be expected to
take place, or possibly even before that time.
72. The Court is comfortably satisfied that the circumstances of this case justify the
making of a costs order. [2012] FamCAFC 185  Reasons Page 12
I certify that the preceding seventy-two (72) paragraphs are a true copy of the
reasons for judgment of the Honourable Justice Coleman delivered on
14 November 2012.
Associate:
Date: 14.11.2012

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