Kendling & Kendling (Application to Extend Time to Appeal) [2008]

FAMILY LAW - APPLICATION TO EXTEND TIME TO APPEAL – Where the applicant sought an extension of time to file Notice of Appeal – Application of Gallo & Dawson [1990] HCA 30; (1990) 93 ALR 479 – Where proposed grounds of appeal raised at least one substantial issue - Where the leave application was filed reasonably promptly after the expiration of the time provided in the Family Law Rules 2004 for filing an appeal – Where the delay in filing the appeal was not solely due to the applicant – Delay was regrettable but understandable – Where applicant able to pay costs in amelioration of any prejudice experienced by the respondent if the appeal is unsuccessful – Where there is other continuing litigation between the parties currently before the Court – Failure to grant leave would constitute injustice - Extension of time granted.

FAMILY LAW - COSTS – Where applicant sought and obtained an indulgence from the Court – Applicant to pay respondent’s costs of and incidental to the application.

FAMILY COURT OF AUSTRALIA

REPRESENTATION

ORDERS AMENDED UNDER THE SLIP RULE

(1) That the time in which to file a Notice of Appeal by the husband against the orders of the Honourable Justice Cronin made 21 December 2007 be extended to 4.00 pm on 14 March 2008.

(2) That appellant husband file and serve a draft appeal index and pre-argument statement on or before 4.00 pm on 14 March 2008.

(3) The Appeal Registrar is authorised to conduct a procedural hearing in respect of the proposed appeal as soon as practical after compliance with Order 2 at date and time to be notified to the parties.

(4) Liberty to either party to restore the matter before the Honourable Justice Boland (or if not reasonably available) to another member of the appeal division) on 7 days notice in writing to the other party and the Appeal Registrar.

(5) That the Notice of Appeal when filed be expedited.

(6) That the husband pay the wife’s costs of and incidental to the application to extend time as agreed and failing agreement under Chapter 19 of the Family Law Rules, 2004.

(7) Certify for senior counsel for the wife.

IT IS NOTED that the husband has filed an application in a case in which he seeks leave to appeal interim property orders made by the Honourable Justice O’Ryan on 25 January 2008 in proceedings between himself, the wife as First Respondent, T Pty Ltd as Second Respondent, Jeremy Kendling as Third Respondent, Penelope Kendling as Fourth Respondent, L Pty Limited as Fifth Respondent, A Pty Limited as Sixth Respondent, Mr Z as Seventh Respondent, B Limited as Eighth Respondent, I Pty Limited as Ninth Respondent and Mr PS as Tenth Respondent (EA 19/08) and that in those proceedings, I have today authorised the Appeal Registrar to conduct a procedural hearing in respect of that application. It is further noted it is not essential that the appeal in respect of parenting orders, and the application for leave to appeal in respect of interim property orders be heard at the time.

IT IS NOTED that publication of this judgment under the pseudonym Kendling and Kendling (Application to extend time to appeal) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Appeal Number: EA 16 of 2008
File Number: SYF 2903 of 2003

Appellant

And

Respondent

EX TEMPORE REASONS FOR JUDGMENT

INTRODUCTION

1. By application in a case filed on 30 January 2008 Mr Kendling, (“the husband”) seeks an order to extend time within which to file a Notice of Appeal against parenting orders made under Part VII of the Family Law Act 1975 (“the Act”) by Cronin J on 21 December 2007. The application is opposed by Ms Kendling (“the wife) in a response filed on 18 February 2008.

2. There is no evidence before me as to whether or not a stay of his Honour’s orders has been sought or obtained. There is however no dispute that pursuant to the Family Law Rules 2004 (“the rules”) an appeal against the trial Judge’s orders was required to be filed on or before 18 January 2008 (see r 1.21).

3. The independent children’s lawyer appeared on this application. He neither supported nor opposed the application.

EVIDENCE

4. The husband relies on an affidavit by his solicitor Megan Elizabeth Dorrough affirmed 24 January 2008. I will return to the evidence in this affidavit later in these reasons.

5. In opposing the application, the wife relies on her affidavit sworn 18 February 2008. I will also return later to matters relied on by the wife.

6. I granted leave to the wife’s senior counsel to tender two documents which became Exhibits “A” and “B” in this application. Those documents were a Notice of Appeal filed on 16 January 2008 against orders made by O’Ryan J on 19 December 2007(the Notice of Appeal is signed by the husband and is dated 22 December 2007), and an affidavit by the husband, either sworn or affirmed by him (the alternatives in the jurat not being completed) at Surry Hills on 22 December 2007 before Mr Peter Smart, solicitor.

BACKGROUND RELEVANT TO THIS APPLICATION

7. The following matters emerge from the trial Judge’s reasons. The husband was born in December 1932. His occupation is Managing Director. The wife was aged 39 years at the date of the hearing and her occupation was noted as being a “homemaker”. The trial Judge noted she also had corporate interests with her entity running a private kindergarten.

8. The parties were married in September 1995 and they finally separated in March 2005.

9. There are two children of the marriage David Kendling born in September 1996 and Marc Kendling born in January 1999. Parenting proceedings in respect of the children were commenced on 28 November 2005.

10. Pursuant to the trial Judge’s orders the parties have equal shared parental responsibility for the children, save for decisions concerning their health and education with the wife having sole parental responsibility for those areas. The parenting orders also provide for the children to spend substantial and significant time with the husband each alternate weekend from after school on Thursday to the commencement of school the following Monday, and on the other week from the conclusion of school on Wednesday afternoon until 8 pm that evening, for one half of all school holidays and on other special occasions. His Honour also made various injunctions details of which are not relevant to this application.

RELEVANT STATUTE LAW AND RULES

11. Section 94 of the Act provides for appeals to the Family Court from courts other than the Federal Magistrates Court. Section 94(1A) provides as follows:

An appeal under subsection (1) or (1AA) shall be instituted within the time prescribed by the standard Rules of Court or within such further time as is allowed in accordance with the standard Rules of Court.

12. Sections 94(2D), (2E) and (2F) are also relevant. They provide:

(2D) Applications of a procedural nature, including applications:

(a) for an extension of time within which to institute an appeal under subsection (1) or (1AA); or

...

may be heard and determined by a Judge of the Appeal Division or other Judge if there is no Judge of the Appeal Division available, or by a Full Court of the Family Court.

(2E) The standard Rules of Court may make provision enabling applications of a kind mentioned in subsection (2D) to be dealt with, subject to conditions prescribed by the standard Rules of Court, without an oral hearing.

(2F) No appeal lies under this section from an order or decision made under subsection (2B) or (2D).

13. Chapter 22 of the rules deals with appeals.

14. Rule 22.02 sets out how an appeal is to be commenced, namely by filing a Notice of Appeal (Form 20).

15. Rule 22.03 provides that a Form 20 must be filed within 28 days after the order appealed from is made. Rule 22.12 provides that the filing of an appeal does not operate as a stay of the operation or enforcement of the order in respect of which the appeal is filed.

16. Rule 22.42 provides for an application to be made in respect of an appeal including an application for permission to appeal an order.

RELEVANT LEGAL PRINCIPLES – APPLICATION FOR EXTENSION OF TIME TO APPEAL

17. The relevant principles to be applied in deciding whether to extend time for lodging an appeal, or an application for leave to appeal, are set out in Gallo v Dawson reported in [1990] HCA 30; (1990) 93 ALR 479. The granting of leave is not automatic but involves the exercise of discretion. The discretion to extend time is given for the sole purpose of enabling the Court to do justice between the parties. In determining whether the rules will work an injustice it is necessary to have regard to the history of the proceedings, the nature of the litigation, the proposed grounds of appeal and the consequences for the parties for the grant or refusal of the leave.

18. The principles have been referred to in a number of cases in this Court including McMahon & McMahon reported in (1976) FLC 90-038 at 75,144, Tormsen & Tormsen (1993) FLC 92-392 at page 80,017 and Gallo v Dawson (supra) at 480 to 481 where McHugh J said:

The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194 5 ; 70 ALR 185 When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263 4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12 ; [1964] 3 All ER 933 at 935:

The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.

DISCUSSION

19. I had the benefit of comprehensive oral submissions from the husband’s counsel, Mr Baran, and the wife’s senior counsel, Mr Richardson. Mr Baran referred me to the principles relevant to this application as espoused by Lindenmayer J In the Marriage of NB and EM Joshua (1997) FLC 92-767; (1997) 22 Fam LR 203 where his Honour said:

The power of the Court to extend the time for the institution of an appeal is a discretionary power to be exercised when it is shown to the Court’s satisfaction by the applicant that strict compliance with the rules will work an injustice to the applicant: Gallo v Dawson [1990] HCA 30; (1993) 93 ALR 479 at 480. Thus, as the Full Court of this Court said in Coombs and Moore (1990) FLC 92-175 at 78,189:

“The Court, in our view, must have demonstrated to it by the applicant for an extension of time, that an injustice will occur if the appeal does not proceed. It is not enough for the Court to have doubts about the propriety of the order sought to be set aside.”

Accordingly, the first and most important question to be determined upon such an application as this is whether the applicant has established that there is a substantial issue to be raised on appeal. If not, the application must fail. If so, then other considerations may become relevant to the exercise of the discretion, namely: the extent of the delay and the reasonableness of any explanations offered for it; any hardship or prejudice flowing to the respondent from the applicant’s delay which cannot be compensated for by orders as to costs or otherwise: and the desirability, in the public interest, that there be finality to litigation. In that regard see also McMahon and McMahon (1976) FLC 90-038 at 75,144 and Tormsen and Tormsen (1993) FLC 92-392.

20. The husband’s counsel candidly admitted some fault lay at the feet of the solicitors for not attending to filing the Notice of Appeal within the time provided in the rules. However, the principal thrust of his submissions was that the husband had raised a substantial issue to be agitated on appeal namely that there had been a forensic misuse by the trial Judge in respect of credit findings. He relied on the High Court authorities of Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 and Abalos v Australian Postal Commission [1990] HCA 47; (1990-1991) 171 CLR 167. He submitted that the husband had the onus on this application to establish there was a substantial issue raised in the grounds of appeal, rather than the need to establish the prospects of success of the proposed grounds.

21. The wife’s senior counsel primarily concentrated his submissions on the grounds of appeal as set out in the proposed draft Notice of Appeal. He submitted that, as drafted, grounds 1 to 8 were not competent grounds of appeal, and that ground 9 was not available having regard to the submissions made to the trial Judge at the conclusion of the hearing. He also submitted that the inference could be drawn from Exhibits “A” and “B” that the husband was present in Sydney and saw his lawyers on 22 December 2007 in respect of the property proceedings, but failed to instruct his solicitors in respect of the proposed parenting appeal. Senior counsel also drew my attention to matters deposed to by Ms Dorrough in her affidavit affirmed 16 December 2007 going to her availability to take instructions and prosecute the husband’s claims notwithstanding that she would be overseas in January 2008.

22. I find it useful to consider the merits or otherwise of the husband’s application having regard to the principles enunciated in Gallo v Dawson (supra), although in the circumstances of this case, I discern the central issue to be considered in the exercise of my discretion is directed to the grounds of appeal, and that other matters are subsidiary to that consideration.

(a) History of the proceedings

23. The trial Judge’s reasons disclose a number of interlocutory applications concerning the children, and that the parties have unresolved complex property proceedings which are being case managed by O’Ryan J, and in respect of which the husband presently seeks leave to appeal interlocutory orders made by O’Ryan J, and it appears, to appeal against another order of his Honour. It is not in dispute that the parenting proceedings were “hived off” from the property proceedings to more effectively dispose of the litigation in a timely way, and to provide some stability for the children.

(b) The conduct of the parties

24. It is not appropriate or necessary for me in dealing with this application to traverse a number of findings made by the trial Judge in the parenting proceedings. What is relevant is the parties’ conduct in respect of the litigation, and this proposed appeal.

25. The husband’s solicitor does not depose to how, or when, the reasons for judgment and orders made were conveyed to the husband and his solicitors. Before me it was conceded as an agreed fact that his Honour’s reasons for judgment and orders were pronounced in Melbourne at approximately 9.30 am on 21 December 2007 and transmitted by email to the parties’ solicitors and the independent children’s lawyer.

26. The wife’s senior counsel at the commencement of this hearing objected to a number of paragraphs in Ms Dorrough’s affidavit including hearsay material. Ms Dorrough deposes that her office was closed for business from 20 December 2007, and it appears at the date of affirming her affidavit on 24 January 2007 at Kuala Lumpur, remained closed “save for the presence of non legal staff”. Ms Dorrough deposed to leaving Australia on Sunday, 23 December 2007 and that she was in Kuala Lumpur at the date of purportedly affirming her affidavit. I note that the jurat of the affidavit which was accepted for filing, was not completed by the witness.

27. Ms Dorrough says she was able to contact counsel on 21 January 2008, when she received advice about grounds of appeal which she drafted that day, and sent by DHL express courier to her office in Sydney. She asserts that the draft Notice of Appeal arrived at her office on 23 January 2008.

28. I agreed with counsel that I would treat paragraph 11 of Ms Dorrough’s affidavit as a submission in support of the husband’s application. In it she says:

Due to my absence from Australia, the absence from Australia of the Applicant and the unavailability of Counsel over the Vacation period I was not able to attend to drawing the Notice of Appeal within the time limit prescribed by the Rules.

29. The wife in her affidavit deposes to receiving notice from her solicitors of the trial Judge’s orders on 21 December 2007. She also refers to correspondence relevant to orders made by O’Ryan J in the property proceedings forwarded from Ms Dorrough’s firm and signed by her and dated 21 December 2007. I deduct the wife seeks that I should draw the inference that if Ms Dorrough was present in her office on 21 December 2007, that she knew or ought to have known of the trial Judge’s orders, and put in place steps before she left Australia on 23 December 2007 to obtain instructions and lodge a Notice of Appeal if so instructed. I also accept that it is open to me to draw the inference from Exhibit “A” and “B” that the husband was able to give instructions to his solicitors to file an appeal prior to leaving Australia for the purposes of a holiday with the children.

30. Ms Dorough affirmed an affidavit on 16 December 2007 in which she deposed inter alia:

92. Where I have deposed herein above to activities being carried out by me on or before Friday 21^st December 2007, I say that I can comply with those dates, as I will continue to operate on my own in my offices until approximately 4.00pm on Friday 21^st December 2007.

...

96. Should the [sic] I be needed to carry out work on this matter during the period of 14^th January 2008 to Friday 1^st February 2008, this can be done by me from overseas by telephone; by E-mail through the Internet system; and /.or [sic] by facsimile. I can make myself available to assist, as and when necessary, by these means of communication during that period.

31. In Mackey and Mackey [2007] HCATrans 271 (28 May 2007) the husband’s solicitor missed a date deadline for the lodging of submissions in a special leave application which had the effect that the special leave application lapsed. In dealing with an application for an extension of time to restore the special leave application Heydon J noted “While these events are regrettable, they are the kind of events which can easily happen in professional practice. They are not events for which the husband was personally responsible”.

32. Having regard to the candid admission by the husband’s counsel that some fault lay with the husband’s solicitors, I accept the failure to file the appeal within the time provided by the rules was regrettable, but not entirely the fault of the husband.

33. Having regard to the main purpose of the rules, it is appropriate that I note that the correspondence annexed to the wife’s affidavit is quite extraordinary. The affidavit discloses 20 separate letters from the husband’s solicitors, all addressed to the wife’s solicitors, all forwarded by hand, all dated 21 December 2007 and signed by Ms Dorrough either enclosing documents or replying to parts of orders made by O’Ryan J, and one letter dated 22 December 2007 in similar vein also signed by Ms Dorrough.

(c) The nature of the litigation

34. The husband’s application is for an extension of time to appeal parenting orders. As such I discern a strict application of authorities relevant to the extension of time in common law matters such as Gallo v Dawson (supra) may not be entirely apt having regard to the nature of the proceedings involving third parties, the children, whose interests may be affected by the orders.

(d) Consequence for the parties of the grant or refusal of the application for extension of time

35. The effect of a refusal of an extension of time from the husband’s point of view is that, absent a significant or substantial change of circumstances, the orders of Cronin J will be final.

36. From the wife’s point of view, if the extension of time is granted, the parenting proceedings will be ongoing, and she will be involved in further costs and delay. The granting of leave could impact on the hearing at first instance in respect of property matters. It appears however that the property proceedings will not be heard until later this year, and if an appeal was expedited it should not prejudice the timely hearing of the property matters. I note that both parties seek in the event an extension of time is granted to file an appeal that the appeal be expedited. These matters are all factors which I must and do take into account in the exercise of my discretion.

(d) The prospects of success of the appeal

37. It is not appropriate (nor am I able absent transcript to do so), that I conduct an exhaustive analysis of the proposed grounds of appeal in this case, although some serious consideration of the proposed grounds is appropriate.

38. Grounds 1 and 2 are so widely drawn as to be incapable of meaningful discussion, or consideration by the wife and those advising her, and in my view, require amendment if the appeal does proceed. Similar comment may be made about grounds 4 to 6. I note that it is not submitted that any order, in respect of grounds 1 to 6, made by the trial Judge was against the evidence or the weight of the evidence, or in what respect, if any, it is asserted there was an error of discretion by the trial Judge, rather the grounds as pleaded seem to reflect disagreement with the orders of the trial Judge because they did not reflect the husband’s application rather than proper grounds of appeal. Ground 8 does address the question of weight placed by the trial Judge on the wording of “meaningful relationship” in the primary considerations under s 60CC(2) It appears that all of these grounds purport to attack the exercise of discretion by the trial Judge. The limits on appellate inference in such a situation are well known (see Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513; (1979) FLC 90-716; CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172; (1998) FLC 92-828).

39. The arguments advanced by the husband’s counsel in respect of grounds 3 and 9 are not immediately apparent on the face of the grounds as drafted. In essence I understand the nub of his submissions to be that the findings of the trial Judge in respect of family violence were unsafe, or based on untested evidence, this leading to a submission that the presumption that it was in the children’s best interest for the parents to have equal shared parental responsibility should not have been rebutted.

40. The wife’s senior counsel submitted that the judgment, read as a whole, discloses appropriate consideration by the trial Judge of the evidence relating to violence, and that his Honour’s reasons must be considered in the light of the submissions made at the conclusion of the trial.

41. I am unable to come to any conclusion about the reliance made by senior counsel on authorities such as Metwally (No2) v University of Wollongong [1985] HCA 28; (1985) 60 ALR 68 absent consideration of the transcript. However I note that the trial Judge in paragraphs 116 to 123 of his reasons, deals with the evidence in respect of a number of asserted incidents of violence and the granting of an interim apprehended violence order. His Honour’s reasons disclose that he made findings, in one case by reference to a police report, and that he recorded his observations of the wife in the witness box during cross-examination. These matters prima facie do not support the broad assertions made by the husband’s counsel.

42. I turn to what I perceive to be the strongest argument by the husband’s counsel on the grounds as pleaded, and that is the challenge enunciated in ground 9. It appears to me to be directed at least in part to the findings of the trial Judge in paragraph 61 of his Honour’s reasons, although it is important to note, without considering exhaustively the trial Judge’s reasons, that his Honour makes a number of specific findings about evidence which could be said to provide foundation for his credit findings (see for example paragraphs 80, 119, 120, 132, 135, 141 and 212).

43. In Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at 128 the majority in the High Court considered the “rare” cases where an appellate court can reach the conclusion from consideration of the record that determinations of the trial Judge are “glaringly improbable” or “contrary to compelling inference”. In such a situation the majority said (footnotes omitted):

...[h]owever, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge’s conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.

That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, case, although the facts fall short of being “incontrovertible”, an appellate conclusion may be reached that the decision at trial is “glaringly improbable” or “contrary” to compelling inferences” in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process.

44. Do then the proposed grounds raise a substantial issue? The grounds, as drafted, disclose, in my view, little prospects of success, but I consider I am hampered in properly assessing the real merits of the proposed grounds, particularly ground 9, without the benefit of the transcript. On the material before me I accept the proposed ground 9 does appear to raise a substantial issue, although I could not be confident at this stage that a Full Court would uphold an appeal, and re-exercise the discretion on the basis that his Honour’s findings were “glaringly improbable” or “contrary to compelling inference”. The injustice if the husband is not able to agitate this ground is a significant factor to be taken into account in the exercise of my discretion.

(f) Can hardship or injustice to the respondent be compensated by an order for costs

45. The trial Judge refers to the husband being a man of wealth. There is no reason for me to think otherwise than if the husband is unsuccessful in any appeal that he could not pay the wife’s costs of and incidental to the appeal if so ordered. I am satisfied that this ameliorates to some degree the prejudice the wife will suffer if leave is granted. I also take into account both parties agree, if the extension of time is permitted, and the Court considers it appropriate to do so, that the matter should be expedited.

(g) Delay by the husband and explanation for the delay

46. I have already extensively canvassed the reasons for delay. I am satisfied the delay occasioned in filing the appeal within the time provided in the rules on the evidence before me lies at least in part with the husband’s solicitor.

CONCLUSIONS

47. Notwithstanding the filing of the leave application was made reasonably promptly after the expiration of the time provided in the rules for filing an appeal, the issues in the application are very finely balanced. Significantly, the grounds of appeal do not appear on their face to have reasonable prospects of success, although I accept at least ground 9 raises potentially substantial issues in a proposed appeal concerning the parties’ children. The delay in filing the appeal has not been sheeted exclusively to the husband, and in those circumstances as in Mackey I find the delay is regrettable, but understandable. The husband can ameliorate some of the prejudice which will be experienced by the wife because of his ability to pay costs if the appeal is unsuccessful, and there is other continuing litigation before the Court. I find each of these factors tips the balance in favour of the grant of an extension of time.

EXPEDITION

48. The final hearing of the property proceedings was fixed, no doubt, on the basis that parenting issues had been determined. The children require as far as the Court is able to do so, some certainty in their lives about their care arrangements. I am satisfied having regard to issues raised in the trial Judge’s reasons, and having regard to litigation history, that the appeal when filed, should be expedited.

COSTS

49. No serious arguments were addressed to me by the husband’s counsel in opposition to an order that the husband pay the wife’s costs of this application. The husband has sought and obtained an indulgence from the Court. I am satisfied that he should pay the wife’s costs of and incidental to this application, and that in the circumstance of this case it is appropriate to certify for senior counsel.

I certify that the preceding forty nine (49) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Boland

Associate:

Date: 26 February 2008