Kassem & Zorba [2008]

FAMILY LAW – APPEAL FROM FEDERAL MAGISTRATES COURT – PARENTING – CONCLUSIONS – Not established that Federal Magistrate’s conclusions relating to safety of child when with mother’s new partner were not reasonably open to him. Australian Coal & Shale Employee’s Federation & The Commonwealth [1953] HCA 25; (1953) 94 CLR 621; House v The King [1936] HCA 40; (1936) 55 CLR 499; Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513 and State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others [1999] HCA 3; (1999) 73 ALJR 306; 160 ALR 588 cited.

FAMILY COURT OF AUSTRALIA

REPRESENTATION

ORDERS

(1) That the appeal be dismissed.
(2) That the application for leave to adduce further evidence be dismissed.
(3) That the husband pay within three (3) months $1000 towards the mother’s costs of and incidental to the father’s appeal.

IT IS NOTED that publication of this judgment under the pseudonym Kassem & Zorba is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

Appeal Number: EA 108 of 2007
File Number: PAM 2196 of 2005

Appellant

And

Respondent

REASONS FOR JUDGMENT

1. By Notice of Appeal filed 13 September 2007, Mr Kassem(“the father”) appealed against orders made by Federal Magistrate Halligan in proceedings between the father and Ms Zorba (“the mother”) on 16 August 2007. The orders of the learned Federal Magistrate provided that the youngest child of the former relationship of the parents, C, who was then eight years of age, spend time with the mother on the basis defined by the learned Federal Magistrate.
2. The aspect of his Honour’s orders which gave rise to the father’s appeal was his Honour’s refusal to order that the present partner of the mother, Mr Zorba not be present during periods when C spends time with the mother. The father sought by his Notice of Appeal that the mother spend somewhat different periods of time with C and that all such times be spent “in the absence of [Mr Zorba]”. (Notice of Appeal, page 3, part E, par 4).
3. The mother resisted the father’s appeal and sought to maintain the learned Federal Magistrate’s orders. During the course of the hearing of the appeal it became apparent that the father wished to rely upon documents which he asserted to have been produced in the Federal Magistrates Court Registry subsequent to the conclusion of the proceedings before the learned Federal Magistrate. Such documents were said to have been produced by the New South Wales Police Service. Leave not having been given to inspect the documents, the father had not been permitted to do so, but believed that the documents would reveal further damaging evidence in relation to the wife’s partner Mr Zorba.
4. Although the father, who has at all material times been unrepresented, has not made an application for leave to adduce further evidence, that is the clear effect of the course which he sought to pursue in this Court. In fairness to the father, notwithstanding that the father’s attempts to have the further documents physically before this Court for his assertions to be considered have been ineffective and somewhat casual, at the conclusion of the hearing of the appeal the Court indicated that it would obtain such further documentation as may have been produced by the New South Wales Police Service from the Federal Magistrates Court Registry and examine such documentation.
5. In the light of the judgment of the High Court in CDJ v VAJ (1998) 197 CLR 172; FLC 92-828, the Court would consider whether, if admitted, the further evidence would render erroneous the decision of the learned Federal Magistrate.
6. Very properly in the Court’s view, Counsel for the mother did not object to the course proposed by the Court although, understandably, Counsel wished to have the opportunity to make submissions in relation to the further evidence if, having perused it, the Court considered that it could possibly have the impact described by the High Court in CDJ v VAJ (supra).
7. The Court will thus consider the further material and, if its acceptance could not satisfy the test described by the High Court in CDJ v VAJ (supra), reject the father’s application to adduce it in the appeal. If the Court is satisfied that the material could advance the father’s appeal, a copy of the material would be provided to Counsel for the wife who would be given the opportunity to make further submissions in relation to it, whereafter the Court would deliver its judgment in the appeal, both in respect to the grounds of appeal agitated by the father pursuant to his Notice of Appeal, and the father’s application for leave to adduce further evidence.

Background

1. There were three children of the former relationship of the parties who were aged seventeen, fourteen and eight at the time of the learned Federal Magistrate’s Judgment. The proceedings which his Honour heard related only to the youngest child C. At trial the mother sought that C live with her and spend time with the father each alternate weekend and half school holidays. The mother sought no orders with respect to the eldest two children who had for some time lived with the father.
2. The father sought that all three children live with him and spend time with the mother provided that during such time the mother not permit Mr Zorba to live with her or otherwise be in the presence of any of the children. Although, it is clear from the orders which he seeks in lieu of those of the learned Federal Magistrate, the father contends that C should spend different times with the mother than his Honour determined, the crux of the appeal to this Court relates to his Honour’s refusal to exclude the mother’s partner Mr Zorba from being present when the mother was spending time with the child C.

Reasons for Judgment of the Learned Federal Magistrate

1. The learned Federal Magistrate delivered his Reasons for Judgment on 16 August 2007 after a trial which occupied three hearing days in March 2007 and a further hearing day in August 2007. Having regard to the ground of appeal upon which the father has relied, it is necessary and instructive to refer only to portions of the learned Federal Magistrate’s Reasons for Judgment.
2. Having identified, accurately there is no doubt, the competing applications before him, and provided a “Background” (Reasons for Judgment, pages 2 – 3) which is not controversial for present purposes, the learned Federal Magistrate explored the “Credibility of witnesses” whose evidence he had heard. (Reasons for Judgment, pages 3 – 5).
3. Although not directly relevant to the appeal, the difficulty the father demonstrated in distinguishing matters of allegation and findings of fact renders it appropriate to refer very briefly to the learned Federal Magistrate’s observations with respect to the credibility of the father, the mother and Mr Zorba. In that context his Honour expressed “some concerns about the reliability of the father’s evidence” (Reasons for Judgment, page 3, para 12) which he detailed. The mother was concluded to be “generally a reliable witness.” (Reasons for Judgment, page 4, para 14).
4. Mr Zorba was found by the learned Federal Magistrate to have been “not truthful” in a number of respects, having at no time attempted to proffer any evidence in relation to his not insignificant criminal record. His Honour, understandably in the circumstances as he detailed them, regarded Mr Zorba’s evidence “with the same degree of caution as I treat the father’s evidence.” (Reasons for Judgment, page 5, para 17).
5. Under the heading “The evidence” (Reasons for Judgment, pages 5 – 6), his Honour considered a variety of allegations relating to Mr Zorba. It is unnecessary for present purposes to refer to each of those matters, save to say that nothing asserted by the father before this Court suggests that his Honour failed to refer to any relevant matter in the course of his thorough and cogently reasoned analysis of those events.
6. Under the heading “Mr [Zorba’s] antecedents” (Reasons for Judgment, page 23), the learned Federal Magistrate recorded:
   1. Mr [Zorba] has a significant criminal record. He was fined for offensive language in 1994, was found guilty on assault but no conviction was recorded in 1994, was convicted of assault and on appeal was placed on a bond in 1999, was convicted on charges of larceny, goods in custody and possession of ammunition without a licence on [sic] 1999, was convicted of goods in custody, use [of] unregistered and uninsured vehicle, give false particulars, and drive unlicensed in 2000, and was convicted on 4 firearms offences in May 2006. His appeal against the 4 firearms convictions was dismissed. (Reasons for Judgment, page 23, para 98).
7. There is no doubt that the basis of these observations was documentation produced on subpoena by the New South Wales Police which became Exhibit B before the Federal Magistrate and, albeit only providing in summary form, a list of the Court outcomes associated with the matters appearing in Exhibit B, which became Exhibit A at trial, and was also produced on subpoena by the New South Wales Police.
8. As will be seen, the father does not dispute that the passage of his Honour’s judgment set out above accurately reflects in summary form the contents of the Police documents which were tendered before him. The father’s real complaint seems to be that his Honour did not consider other Police documentation which was produced to the Court after his Honour delivered judgment, which the father had no opportunity to present to his Honour and his Honour had no opportunity to consider.
9. Having referred to other matters relating to Mr Zorba’s criminal history, his Honour reiterated his lack of satisfaction with Mr Zorba’s evidence. (Reasons for Judgment, page 23, para 100). After considering the proposals of each of the parties in detail, (Reasons for Judgment, pages 25 – 27), his Honour considered the contents of “The Family Report”. (Reasons for Judgment, pages 27 – 29). His Honour referred to the author of the Family Report recording that the children had not been observed with Mr Zorba “as the children told the Report writer that if they were asked to be in the same room as Mr [Zorba], they would walk out and leave the Court.” (Reasons for Judgment, page 27, para 118). A number of negative perceptions of Mr Zorba expressed by each of the children to the Family Report writer were referred to by the learned Federal Magistrate, as was the Report writer’s opinion that the children were “driving a hard bargain, effectively requiring the mother to choose between them and Mr [Zorba].” (Reasons for Judgment, page 28, para 124).
10. Against that review of the extensive evidence which he had heard, the learned Federal Magistrate referred, accurately there is no doubt, to “The applicable law” and to authorities relevant for the purpose of determining the case before him. (Reasons for Judgment pages 29 – 34).
11. By reference to s 60CC(2)(b) Family Law Act 1975 (Cth) (“the Act”), the learned Federal Magistrate considered the issue of potential “abuse or neglect or exposure to family violence” with particular reference to Mr Zorba. (Reasons for Judgment, pages 35 – 36). His Honour referred to the father’s beliefs in that regard and, for reasons which he detailed (paragraph 139), declined to make findings adverse to Mr Zorba about alleged assaults by Mr Zorba upon his former wife and/or neighbours. Whilst explaining how he came to fail to cross-examine Mr Zorba in relation to such matters, the father did not suggest in this Court that the learned Federal Magistrate erroneously stated any of the facts in relation to that issue. His Honour concluded that he was not “satisfied on the evidence that there is an issue of risk of family violence to any of the children while with the mother because of Mr [Zorba].” (Reasons for Judgment, page 36, para 139).
12. His Honour acknowledged as a “legitimate concern of the father whether any new partner of the mother may be a risk to the children.” (Reasons for Judgment, page 38, para 147). He reiterated that “some of the matters that caused the father concern have been established by evidence before me, namely Mr [Zorba’s] criminal history” whilst others have not “such as suggestions Mr [Zorba] is a drug dealer and beat his former wife.” (Reasons for Judgment, page 38, para 148).
13. Mr Zorba was again referred to by his Honour, albeit in the context of an assessment of the mother’s capacity to parent C. His Honour recorded that:
    1. The mother said Mr [Zorba] told her everything about himself, including about his criminal history. She must therefore be taken to know, and to have known at relevant times, of his significant criminal record, and that he considers himself at risk of possible future assault. She must also be taken to know, and to have known at relevant times, that Mr [Zorba] continues to maintain his innocence in relation to convictions for serious offences even after unsuccessfully appealing those convictions. (Reasons for Judgment, page 41, para 158).
14. There followed further and detailed analysis of the implications of Mr Zorba’s criminal record. His Honour recorded that:
    1. Mr [Zorba’s] most recent convictions relate to an incident that occurred 2 years ago. There is no evidence of any subsequent charges against him. While rehabilitation is always a possibility, there must be some genuine concern when Mr [Zorba] does not acknowledge any wrongdoing. Objectively, the risk of re-offending must then be greater. He himself believes there is a risk of being assaulted again. And he gave no evidence about his criminal record, and certainly gave no evidence on which the Court could base a finding that he has turned over a new leaf. Thus, objectively I am satisfied there is a risk of Mr [Zorba] re-offending, and of being the victim of a further assault or assaults. If any of the children were to live with the mother and Mr [Zorba], there is a risk of them being exposed to a criminal lifestyle, to Mr [Zorba’s] distrust of, if not open antipathy to, the police, and to the possibility of serious violence upon Mr [Zorba]. (Reasons for Judgment, page 41, para 159).
15. Under the heading “Discussion and decision”, (Reasons for Judgment, pages 43 – 48), the learned Federal Magistrate refined the focus of his attention to the findings of fact which he had earlier and extensively recorded, and to the relevant legislative provisions which he had also accurately identified.
16. Significantly for present purposes, his Honour concluded that he was:

“...satisfied that there is some risk to C from being exposed to Mr [Zorba] for any significant periods of time, and in my view this tips the balance of this case against C spending any significant time with the mother. In my view, it also tips the balance against C spending any overnight time with the mother at this stage.” (Reasons for Judgment, page 47, para 183).

1. His Honour added:
   1. If in time the mother can demonstrate that Mr [Zorba] has been rehabilitated from his criminal past and that there is no real risk of his being further assaulted, then, other things being equal, it would benefit C to move to greater periods of time, including overnight time, with the mother. This would not only provide a greater opportunity for him to benefit from a meaningful relationship with his mother, but also from a closer relationship from his younger half sister. However, I am satisfied that at present, such an arrangement is not in his best interests. (Reasons for Judgment, page 47, para 184).

Relevant Law

1. The law which governs this appeal is not in doubt, although the father’s presentation of his case suggests that he is unfamiliar with it. In the hope that the father might better understand how this Court has determined his appeal, the following brief references to the relevant law are provided.
2. There is a presumption that the decision of the learned Federal Magistrate is correct. Kitto J in Australian Coal & Shale Employee’s Federation & The Commonwealth [1953] HCA 25; (1953) 94 CLR 621 said (at 627):

I shall not repeat the references I made in Lovell v. Lovell [1950] HCA 52; [(1950) 81 CLR 513, at pp 532-534] to cases of the highest authority which appear to me to establish that the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgment is that there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong.

The father bears the onus of demonstrating that his Honour’s decision was clearly wrong.

1. The grounds for appellate intervention are explained in the time honoured statement of the High Court in House v The King [1936] HCA 40; (1936) 55 CLR 499 in which Dixon, Evatt and McTiernan JJ said (at 504-505):

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

1. The orders of the learned Federal Magistrate were made in the exercise of a discretionary power. The circumstances in which an appeal court may interfere with the exercise of discretion were discussed by Stephen J in Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513. His Honour there said (at 519-20):

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.

Grounds of Appeal

1. The one ground of appeal articulated by the husband in his Notice of Appeal provided:
   1. That his honour failed to give due consideration to the evidence, particularly the subpoenaed evidence, provided to the court in relation to possible risk to the child should the mother’s partner, Mr [Zorba] be present during periods of time the mother spends with the child due to Mr [Zorba’s]:
      • - violent tendencies
      • - extensive criminal history
      • - actions against his ex-wife and their children including kidnapping the children and hospitalising his ex-wife
      • - possession of firearms and specific criminal actions relating to the use of firearms.
      • - violent threats towards the appellant, the child and the appellant’s family members. (Notice of Appeal, page 3, part D).
2. The husband’s written summary of argument could not advance his ground of appeal. In order to discern whether the challenge conveyed by the father’s ground of appeal had possible merit, the Court referred him to many of the passages referred to earlier in the Court’s review of the trial Judge’s Reasons for Judgment.
3. Broadly speaking, reference to those paragraphs revealed that the father did not assert that the learned Federal Magistrate’s exercise of discretion could have miscarried by reason of any erroneous finding of fact. Nor, it is clear from the father’s submissions to this Court, did his Honour’s exercise of discretion miscarry by reason of the drawing of erroneous inferences from his unchallenged findings of fact, or from reaching conclusions which were not reasonably available having regard to his Honour’s findings of fact and inferences able to be drawn from them.
4. As is not in doubt, the learned Federal Magistrate accurately summarised Mr Zorba’s criminal antecedents by reference to Exhibits A and B. The Court has closely examined each of those Exhibits and is satisfied that his Honour’s summary of Mr Zorba’s antecedents was accurate.
5. The further consideration of Mr Zorba’s 2006 firearms offences (Reasons for Judgment, page 23, para 99) was also an accurate summary of the matters revealed by Exhibit B. His Honour rejected, as he made plain in his Reasons for Judgment, Mr Zorba’s claims of innocence of any wrongdoing, that he had been “set up” or that “the only danger he faces is possible future assault by the police”. (Reasons for Judgment, page 23, para 100). Whilst perhaps not abundantly obvious to the father, these findings were clearly favourable to the father.
6. As earlier noted, his Honour later in his Reasons referred to other matters which were clearly favourable to the father’s case, including the children’s attitude to being in the same room as Mr Zorba and the children’s negative views of Mr Zorba (Reasons for Judgment, pages 27 – 28, paras 118 & 120).
7. Nothing to which this Court has been referred by the father establishes that the learned Federal Magistrate’s conclusions with respect to Mr Zorba’s alleged violence to his former wife and/or neighbours was in any way inaccurate (Reasons for Judgment, pages 35 – 36, para 139). Nor has it been demonstrated that any inferences or conclusions his Honour drew from the facts as they emerged in relation to those topics were other than reasonably open to him.
8. His Honour’s conclusion that the evidence did not establish “an issue of risk of family violence to any of the children while with the mother because of Mr [Zorba]” has not been successfully challenged in this Court. On the evidence before him, the learned Federal Magistrate was entitled to conclude as he did. (Reasons for Judgment, page 36, para 139).
9. Consistent with the findings which he had earlier recorded, the learned Federal Magistrate concluded that “some of the matters that caused the father concern have been established by evidence before me, namely Mr [Zorba’s] criminal history” whilst others “such as suggestions Mr [Zorba] is a drug dealer and beat his former wife” had not. (Reasons for Judgment, page 38, para 148). Nothing to which this Court has been referred establishes that his Honour was in error in any relevant respect in either of those statements.
10. His Honour saw and heard the witnesses give evidence. He had regard to relevant documentation for the purpose of making his findings of fact. It has not been established that the learned Federal Magistrate’s “advantage” at trial was misapplied or exceeded in the exercise of his discretion (see State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others [1999] HCA 3; (1999) 73 ALJR 306; 160 ALR 588 at 330 – 332; 619 – 622). Whilst there was evidence before his Honour which could have led him to conclude that the children could be at risk by being in the presence of Mr Zorba, even when the mother was also present, the evidence rendered available other conclusions.
11. The fact that his Honour reached a conclusion other than the one urged upon him by the father does not establish that his Honour was in error. As noted earlier, it has not been established that his Honour’s exercise of discretion proceeded in reliance upon any erroneous finding of fact. Indeed, short of finding that Mr Zorba had, or was likely to be violent to the children of these parties, every finding of fact made by the learned Federal Magistrate with respect to Mr Zorba was favourable to the father. So finding however did not logically or necessarily lead to the conclusion which the father sought that his Honour draw.
12. Nothing to which this Court has been referred, or has discerned for itself from a careful evaluation of the learned Federal Magistrate’s Reasons for Judgment, or the father’s submissions with respect to it, establishes a basis for appellate intervention. In reality, only by accepting that his Honour erred because the father asserted that he did could this ground succeed. As the authorities to which reference has been made make clear, far more than the dissatisfaction of a party to litigation with its outcome is required to enliven appellate intervention.

Further evidence

1. As was foreshadowed at the completion of the hearing of the appeal, subsequent to its completion, the court obtained the further material to which the father referred and which he suggested had been produced subsequent to the delivery of judgment in the proceedings by the learned Federal Magistrate.
2. The documents appear to be contained in a number of files which have been obtained from the custody of the Federal Magistrates Court. The first bundle of documents, numbered 8, it is clear, was produced to the Court on 10 December 2007 in purported answer to a subpoena issued on 18 January 2007 and returnable on 16 February 2007. Attached to the document is a list of aliases of Mr Zorba and a “court history” which set out Mr Zorba’s criminal record from 9 June 1988 up to and including 9 March 2007.
3. Perusal of that document reveals nothing of substance which had not previously been revealed before the learned Federal Magistrate and referred to by him. The document is in no way inconsistent with the learned Federal Magistrate’s findings with respect to Mr Zorba’s criminal record. The one entry which appears to be additional to the entries contained in Exhibits A and B before his Honour and dated 9 March 2007 relates to an appeal to the Sydney District Court with respect to the firearms offences which were dealt with on 10 July 2005 to which his Honour made extensive reference in his judgment.
4. Having that additional entry before him could not reasonably have led his Honour to reach a different conclusion to that which he reached in the proceedings which gave rise to this appeal. These documents ought not be received as further evidence as they do not satisfy the requirements of s 93A of the Act as the High Court has explained them in CDJ v VAJ (supra).
5. The next file, numbered 9, is in precisely the same terms as the file to which reference has just been made. It appears that the bundle numbered 8 is in fact a photocopy of the bundle numbered 9.
6. The documents comprising the bundle numbered 10, and produced by the New South Wales Police Force on 19 February 2008 and attaching an earlier letter dated 18 February 2008 appear to relate to a subpoena issued in the Federal Magistrates Court on 15 February 2008 and returnable on 3 March 2008. The document appears to contain a “court history convictions” with respect to the father. Nothing there appearing could possibly have altered the decision made by the learned Federal Magistrate on 16 August 2007, save perhaps to reinforce a number of his Honour’s adverse impressions of the father.
7. Marked as bundle numbered 11, were further documents produced by the New South Wales Police by letter dated 28 February 2008. These documents are in response to a subpoena issued on 15 February 2008 and returnable on 3 March 2008. The documents appear to relate substantially to the father, and to focus on apprehended violence orders made against him, as well as other matters, none of which could, if accepted, advance the father’s challenge to the learned Federal Magistrate’s orders of 16 August 2007.
8. If one accepted the truth of the hearsay there recorded, which the Court could not readily do, having regard to the nature of the material appearing in these documents, they would not satisfy the requirements of CDJ v VAJ (supra). None of the further evidence sought to be relied upon by the father having the effect required of them as explained by the High Court in CDJ v VAJ (supra), they should not be accepted as further evidence in the appeal.

Conclusion

1. The ground of appeal having not been made out and the application for leave to adduce further evidence being unsuccessful, the father’s appeal will be dismissed.

Costs

1. Counsel for the mother sought that the father pay her costs of the appeal. Understandably, reliance was placed upon the fact that the appeal has been wholly unsuccessful, and to the fact that the mother has incurred considerable expense in successfully resisting the father’s appeal.
2. The mother is not in employment but owns a home which she occupies with Mr Zorba. The home is subject to a mortgage. The mother is supported by Mr Zorba who earns approximately $700 per week in employment. The mother is clearly not in affluent circumstances.
3. The father is not employed, occupies a home which he owns subject to a mortgage and has the primary responsibility for the care of the children of the former relationship between himself and the mother. Twelve dollars per month is received by way of child support from the mother.
4. The father has been wholly unsuccessful. With due respect to him, despite the fact, as the learned Federal Magistrate accepted, that the father has genuine concerns for the safety of his children should they come into contact with Mr Zorba, nothing which he has raised in this appeal, or attempted to raise by reference to the further evidence to which the Court has referred, provides any justification for appellate intervention.
5. Objectively, failure was always likely to be the fate of this appeal having regard to the absence of challenge, or effective challenge, to the learned Federal Magistrate’s findings of fact, or the conclusions based upon them. As the Court’s review of his judgment makes clear, the learned Federal Magistrate thoroughly examined the extensive evidence before him and produced comprehensive and cogent reasons for the decision which he reached in a case which, on unchallenged findings of fact “could have gone either way”. Whilst questions of merit militate strongly in favour of making an order for costs against the father, his financial circumstances and the reality that he bears disproportionately the financial burden of raising the children of the marriage militate against such an order.
6. On balance, the Court is of the opinion by reference to the matters to which regard must be had pursuant to s 117(2)(a) that a proportion of the mother’s costs of the appeal should be borne by the father. The sum of $1000 would be an appropriate reflection of the countervailing factors to which reference has been made. Three months to pay such costs would not in the circumstances be unreasonable.
   

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman.

Associate:

Date: 17 March 2008