Ackersley & Rialto - [2009] FamCA 817

FAMILY COURT OF AUSTRALIA

ACKERSLEY & RIALTO

[2009] FamCA 817

FAMILY LAW – CONTRAVENTION – Obligations created by orders – Reasonable excuse – Children deciding what parts of orders they will follow – Obligations on parents regardless of wishes of children

Family Law Act 1975 (Cth)

Elspeth and Peter; Mark and Peter; and John and Peter (2007) FamCA 655
In the Marriage of Gaunt (1978) FLC 90-468
McClintock and Levier (2009) FLC 93-401
O’Brien and O’Brien (1993) FLC 92-396
Stevenson and Hughes (1993) FLC 92-363

APPLICANT:

Mr Ackersley

RESPONDENT:

Ms Rialto

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

835

2009

DATE DELIVERED:

3 September 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

18 AUGUST 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MS STEWART

SOLICITOR FOR THE APPLICANT:

KENNEDY WISEWOULDS

COUNSEL FOR THE RESPONDENT:

MR WEIL

SOLICITOR FOR THE RESPONDENT:

WILLIAM J KEOUGH

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

MS SMITH

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

VICTORIA LEGAL AID

Orders

That the allegations numbered 1 and 3 of the contravention application filed by the husband on 30 July 2009 are dismissed.
That allegations 2 and 4 of the said contravention application are found proved.
That the allegations referred to in paragraph 2 of these orders are established pursuant to sub-division E of Division 13A of Part VII of the Family Law Act 1975 (Cth).
That pursuant to s 70NEB(1), each of the husband and the wife forthwith enrol in an approved post-separation parenting program to be organised by the Independent Children’s Lawyer.
That upon the Independent Children’s Lawyer being advised of the confirmation by each party separately of having enrolled in the post-separation parenting program, she shall notify the Registry Manager of the Melbourne Registry of the Family Court of Australia of such enrolment details.
That upon the advice referred to in paragraph (5) of these orders by the Registry Manager, the Registry Manager is directed to provide notification of the post-separation parenting program provider the details of the making of this order in respect of both husband and the wife.
That in addition to the obligations referred to in the existing parenting orders, the wife shall deliver the children to the husband at any time that they return to her or to where she has knowledge of their whereabouts if they absent themselves from the husband’s care during any time under which they are his responsibility pursuant to the orders of this Court.
That subject to paragraph (10) of these orders, the application in a case filed by the wife on 27 July 2009 be adjourned to the final hearing on 8 October 2009 at 10.00am.
That any application for costs by either party be by way of written submission. Such submissions to be filed and served by 4.00pm on 11 September 2009 and any reply to the submissions be filed and served by no later than 4.00pm on 18 September 2009 and any such determination arising out of those submissions be by order in chambers.
That each party have liberty to apply in respect of these orders.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 835 of 2009

MR ACKERSLEY

Applicant

And

MS RIALTO

Respondent

REASONS FOR JUDGMENT

In this contravention application, there are many questions. They include how far a parent has to go to make children spend time with another parent and what to do when young children choose what portions of orders they will comply with.
There is an imminent final hearing in this case but the husband has consistently maintained that the Court had to do something about enforcing its interim orders despite that final hearing being close.
The chronology in this case is not complex but it needs to be noted.
The husband is a 42 year old professional who describes himself as a senior project manager. The wife is a 43 year old professional. Their two children are M born in November 1996 and therefore 12 years of age and L born in May 1998 and therefore 11 years of age.
The parties married in 1993 and separated on 2 December 2008. In February 2009, the husband began parenting proceedings seeking a week-about arrangement concerning the children. The wife responded that the husband’s time should be limited to alternate weekends from Saturday morning to Sunday night. There were other orders relating to school holidays but they do not seriously affect what I am determining. It was noticeable that the wife sought her orders to be conditional upon the husband attending an anger management course and an appropriate parenting skills course.
On 27 March 2009, Senior Registrar FitzGibbon conducted a contested interim hearing in relation to the respective applications of the parties and made orders. The parties had been before a registrar only days before at which point, the parenting issues were unresolved and the parties agreed to obtain a psychologist’s report from Ms F. That report was not available to the Senior Registrar on 27 March 2009. The Senior Registrar, in addition to making an order for the appointment of an Independent Children’s Lawyer, made the following orders:
1.By consent, that the husband and the wife have equal shared parental responsibility for the children of the marriage [M] born […] November 1996 and [L] born […] May 1998.
2.By the Court, until further order, the children live with the husband as follows:
a. During school terms:-
(i)Each alternate weekend from after school Friday to the commencement of school Monday (or Tuesday if the Monday is a non-school day) to commence 24 April 2009;
(ii)From after school each Tuesday until 8.00pm.
b.For one half of school term holidays comprising two blocks of 4 nights the first to commence from after school on the last day of school term until 6.00pm on Tuesday 7 April 2009 and from 6.00pm on each Sunday until 6.00pm on 16 April 2009; and
c.At such further or other times as may be agreed.
3.That until further order the children live with the wife at other times.
4.That residence changeovers which do not take place at school take place via the party commencing their residence period collecting the children from the other parties home.
5.That the husband have reasonable telephone communication with the children not less than twice per week.
6.That all extant applications be adjourned to 11 May 2009 at 9.45am.
I also do not have benefit of the Senior Registrar’s reasons for making those orders. Suffice to say, the wife was not happy with the outcome. That was made abundantly clear when she wrote two emails to teachers of the children almost immediately after the hearing. The wife said that in hindsight she would have acted differently but it is abundantly clear from the following that she was dissatisfied with the orders. Paraphrasing, to M’s teacher she said:
·    Unfortunately for M, things in court did not go as well as we hoped;
·    We are back to court on 11 May;
·    “Evidence” in court carries very little, if any weight, when in letter or affidavit that is not cross-examined…fortunately the evidence was concerning enough that only a “very modest” time was granted;
·    M is upset, and in the process of understanding why, when so many of family and friends had written of (the husband’s) behaviour directed towards him, he has to spend time with (the husband) but he does not want to;
·    M is intelligent and has a reasonable grasp of the court process and how it makes its decision and therefore why this decision is being made. Although M has expressed clear views as to what he wants, and why, his views have not been listened to as he has not been able to present them in a form acceptable by the court.
·    It will be extremely important for M that he is listened to in the next stage of the process, and I hope this will be the case.
·    I actually think M will manage okay with what is happening, as long as these changes are temporary.
·    Nonetheless M is not happy things have turned out this way, albeit temporarily.
To L’s teacher, the wife said very similar things.
The sentiments of the wife were expressed immediately after the orders. Despite that, things were uneventful until the middle of July 2009. Uneventful, because on 11 May 2009, the parties compromised before Senior Registrar FitzGibbon and sought orders by consent to expand the March orders to include birthday time between the husband and the two children. On 3 June 2009 before me, further consent orders varied the March orders. Rather than just spending time with the children from after school each Tuesday until 8.00pm as had been ordered by the Senior Registrar, the parties agreed it would be expanded to make the Tuesday night an overnight in each alternate week.
By the time that the matter came before me, the report from Ms F had been made available to the parties. Ms F said many things but for the purposes of this determination now, I found the following observations relevant:
·The wife said that M was enjoying his time with his father but was “probably thinking how long will it last” and L said “No way” about spending more time with his father.
·The husband said that he had applied for equal parenting. It was all “very messy”. He was “extremely disappointed” because he had “equal rights and equal responsibility” and he wanted “equal time”.
·The wife said that the children were thriving with the timetable “they’ve been involved in framing. I wanted the kids to have a voice”. She then told Ms F that the parties should keep the original plan referring to the pre-March 2009 orders.
Ms F then referred to the question of what weight should be given to the views of the children and said:
Both [M] and [L] are of an age where their maturity suggests that any views expressed by them should be considered seriously, but in my view their emotional competence is not sufficient for their views to be afforded primacy. Both [M] and [L] present as articulate and confident in expressing their views.
Ms F said that the children articulated that they wanted the time that had occurred with their father prior to the March 2009 orders. She said that L expressed distress about the relationship between his parents prior to separation and made reference to what happened when his father was angry. As for the terms of the living arrangements, L reported to Ms F that he did not like the changes. He made reference to taking bags to the home of his father and there was no time to do homework.
Ms F referred to the level of involvement of the children in court matters. She noted that during an observation visit to the home of the wife, the wife asked her in the presence of M if she could talk with the children again about their wishes and said that they wanted to tell her again of their wishes.
There are many other matters referred to in the report of Ms F which are relevant and very important to the substantive parenting issues. However, for my purposes, Ms F observed that the wife demonstrated leadership in guiding the children and the children presented as securely attached to her. Of the husband and children, Ms F observed warm and appropriate parenting in circumstances where the husband interacted with them in a responsive manner engaging with verbal and physical expressions of affection. He too demonstrated leadership in initiating activities and redirecting the children when they began to bicker. Similarly, the children responded easily with their father and demonstrated a secure attachment relationship to him.
Ms F said M talked about his father shouting and pointing his hands everywhere and that this was a reference to a time prior to separation but M’s view was that “Mum would stand up to him”.
M went on to say that he felt sad when his father got angry and his mother shouted and then they starting swearing.
Ms F reported that M then handed her a note setting out what hours he wanted to spend with his father. It clearly appeared consistent with the position of his mother.
L told Ms F that he wanted to decide when to see his father but also became tearful at the prospect of not seeing his father at all.
Ms F’s evaluation was contained in her report attached to her affidavit filed 3 June 2009. The wife in evidence indicated she disagreed with the opinion of Ms F. I stress therefore that I am hesitant about giving the views of Ms F any weight because of the fact that the evidence is untested. However, that evidence is relevant and in the context of the evidence of the husband and the wife, it does assist me.
Ms F referred to the fact that the wife held a creditable view about having the wishes of her children acknowledged in respect of the living arrangements. That statement was consistent with the evidence that I heard from the wife to which I shall refer below. However, Ms F said that in her view, the wife may have misguidedly empowered the children in the dispute, unwittingly creating a conflict of loyalty for M and L as they tried to come to terms with living in two different households. Ms F expressed concerns about the need for boundaries.
Of the husband, Ms F noted that he was facing the challenge of strengthening the parenting relationship with M and L and that he needed parenting education. I propose to facilitate that because I am not convinced he fully comprehends the magnitude of his problem in developing a relationship with these children.
As part of the determination of the contravention proceedings and the ultimate outcome of the hearing, both parties have asked that I vary the existing orders in a radically different way to that which they were made in March 2009. The husband for example seeks that the children now live with him. The wife’s position is that the orders should revert to the position that she wanted and which is also expressed by the children to be their desire. Ms F referred to the husband’s equal shared care arrangement as being premature in terms of the adjustment of the children to the separation and the need for strengthening the child-parent relationship with him.
Despite what has arisen out of the period subsequent to the last school holidays and despite the husband’s frustrations about the workability of the orders, it would be inappropriate in my view to simply ignore the views of Ms F to which I have just referred.
Ms F recommended that the orders made by the Court on 27 March 2009 continue but that they be reviewed at the end of the 2009 school year with a view to commencing equal shared care. Counsel for the wife submitted that having regard to what has occurred since the last school holidays and particularly as late as week ago, Ms F needs to rethink all of that.
I am not sure that Ms F needs to rethink her recommendations but she certainly needs to understand that the dynamics for this family as were expected in the March 2009 orders, have not been fulfilled. In reality, it may very well have been that Ms F might have predicted these things that have occurred subsequent to the last school holidays.
In his affidavit, the husband referred to the fact that he successfully had time with the boys from 26 June until 4 July. Things then went wrong.
As a consequence, the husband filed a contravention application on 30 July 2009. It alleged four breaches of the existing parenting orders. Those breaches need to be set out in full having regard to the nature of the evidence. Accordingly, this is what the husband alleged:
1.The respondent wife without reasonable excuse failed to ensure that the children were physically and in all other respects available to be collected by the applicant husband from [G] School at the conclusion of school on Tuesday 14 July 2009
2.At about 6.30pm on Tuesday 14 July 2009 and during the period in which the children were to be living with the applicant husband pursuant to the orders made by this Honourable Court, the respondent wife:
2.1Failed without reasonable excuse to permit the applicant husband to collect the children from the home of the respondent wife at [B] (“the [B] property”); and
2.2Failed without reasonable excuse to direct and require the children to leave the [B] property in the care of the applicant husband
3.The respondent wife without reasonable excuse failed to ensure that the children were physically and in all other respects available to be collected by the applicant husband from [G] School at the conclusion of school on Friday 24 July 2009
4.At about 6.00pm on Friday 24 July 2009 and during the period in which the children were to be living with the applicant husband pursuant to the orders made by this Honourable Court, the respondent wife:
4.1Failed without reasonable excuse to permit the applicant husband to collect the children from the home of the respondent wife, being the [B] property; and
4.2Failed without reasonable excuse to direct and require the children to leave the [B] property in the care of the applicant husband.
Through her counsel, the wife denied all four allegations.
For the purposes of the contravention application, the standard of proof is the balance of probabilities. The onus of proving the breaches of the orders lies with the husband save that if it becomes necessary to refer to whether or not the wife had a reasonable excuse, the onus would then be upon her on the balance of probabilities, to prove that a reasonable excuse existed.
Although there are four allegations, they really arise out of two incidents. 14 July 2009 was a Tuesday. The husband went to collect the children from school and they were not there. He subsequently ascertained that they were at the home of the wife and he went there. He did not have time with the children that day.
The second incident arose on 24 July 2009 which was a Friday and the start of what would have been a weekend under the March 2009 orders. The husband went to the school and the children were not there. It transpires that the children had left and gone to the home of the wife. The husband went to the home of the wife. The husband did not get to see the children on the Friday night pursuant to the orders.
Although there were affidavits filed by the husband’s parents, they simply corroborated much of what occurred at the home of the wife upon the arrival of the husband. They were present with the husband.
In reality, there was not a significant difference between the husband and the wife about the sequence of events. There are subtle differences and I shall set out my findings hereafter. What follows is the evidence upon which I rely.
Just after 3.00pm on Tuesday 14 July 2009, the husband went to the children’s school and waited at the usual spot where he would normally have collected them. He said he was on time to meet the boys. They had not arrived at the spot by 3.30pm. He waited for at least 10 to 15 minutes. However having observed the school had finished, there was no sign of the children. He tried ringing their mobile telephones but they were switched off. He sent a text message to the wife at about 4.30pm but she did not respond.

The husband then contacted his lawyers and there appears to have been lawyer to lawyer contact.
He then spoke to various teachers who confirmed that the children had been at school that day. One of the teachers to whom he spoke contacted the wife who said that she did not know where the children were. By this stage things were becoming serious.
The husband said that at 5.30pm, the wife telephoned him to say that the boys were at home having walked there. She said they did not wish to go with him and she then stated that they would be staying with her.
The husband then went to the home of his parents and collected them. He arrived at the wife’s home at about 6.30pm and knocked on the door. He said that at no stage did the wife open the door. In fact she refused to do so saying that the children would not come and that she did not trust him. He said he heard M say through the door words to the effect that he really did not want to go. He said that the told he wife it was his time with the children and that she had to tell them to come out and go with him. He said her response was that they were not going and that they were staying with her.
The husband was cross-examined about what had occurred at school and said that he thought he saw the wife’s car around the corner from the school. It was put to him that he was making that up. In fairness to the husband, when the wife was cross-examined, she said it was possible that he had seen her because she had an arrangement with her practice partner to park a car nearby to the school and they took it in turns to drive to work. Nothing turns on the issue because there is no evidence that the children saw the wife in any event.
The husband accepted that when he first spoke to her on that afternoon she was telling him the truth that she did not know where the children were. That was at 4.30pm. In a functional family where there were no trust issues between parents, that conversation would have triggered absolute alarm. The husband and the wife in this case do not seem to be able to work together at all. Each went their own way about resolving the problem of the missing children.
An hour later at 5.30pm, the husband was told by the wife that the children were at her home. The husband then did something which I found puzzling. He went to collect his parents to take them with him for the purposes of having witnesses when he went to the wife’s home. Of some importance however is the time lag here. The children had been home by around at least 4.30pm or shortly thereafter and the husband did not get to the home until 6.15 or 6.30pm. The significance of that is what happened during those hours. The husband was unable to assist because he was not there. In cross-examination of the wife, she said she had been shopping, returned home and found the children there. She said that they were shaking and frightened and both immediately said that they did not want to go to the home of their father. She said they were in the study which is off the garage. She said her reaction was to give them a hug by which stage everyone was shaking. However, and I accept her evidence in respect of this, she said that she was relieved to know where they were. As to why they were frightened, she simply said they just were.
When asked what then occurred, she volunteered that she picked up her telephone and contacted the husband to say that they were safe and his response was to thank her.
The wife then said that she engaged with the children asking them what was going on and why they were there. They responded that they did not want to go because it was too long. She said that she then told them that they should have gone with their father. She said that she told them that the plan was that they were to go and that she wanted them to go. In response, the children said they were not going. When pressed by counsel for the husband as to how she expressed things and what the children said, she said that she told the children that their father was coming to collect them and that they had to gather their things together because it was his night. They then said they would be hurt if they went to their father’s home but she responded that she did not think that that would happen.
There is a strong ring of reality about the wife’s evidence in respect of the conversation. She impressed me as setting out what I would expect was a normal reaction of a parent who has just learned what had happened. The question that remains unresolved is whether the wife should have then simply told the children she was taking them to their father or to have taken them outside the house for their father to arrive to hand them to him.
About what happened upon his arrival at the home, the husband said in cross-examination that it was dark and he was on the porch outside of the door. He noticed that the curtains were closed. He said he spoke briefly with the wife who was standing over the shoulder of the children. The one thing about which the parties agree is that the children did not come outside of the house nor did the wife.
All of the facts above give rise to the first two allegations.
I find in respect of the time at school that the wife was not aware of the actions of the children. I find there is nothing in the evidence to suggest she specifically orchestrated the situation for the children to leave the school and go to her home. I find there is no basis on these facts to say the wife deliberately orchestrated the event or encourage the event such as to give rise to a breach at the school. The first allegation cannot be seen to have been proved.
I find in respect of the incident after 4.30pm however that the wife did not say to the children in any positive way that they were going to spend time with their father pursuant to the orders whether they liked it or not. I accept her version of what occurred at the house because the husband was not there. The question that arises however is whether the wife’s conduct was sufficient to encourage the children to go or not. That depends to some extent on an objective analysis of the facts to which I have just referred and how the law is to be applied to them. I shall return to that issue below.
Having not been able to spend time with his children, the husband then left the home. It would appear that on the following week, things proceeded as if nothing had happened.
The husband was asked about how he approached the next visit with the children. He said that he had not told the children that they had behaved badly nor that he had been worried nor that a lot of people had been put out. He said he did speak to them but not in that sort of language. He said the conversation with them was brief. When asked whether he thought that the wife was putting the children up to all of this, he said that he believed that was the case because he had had nine months of watching her behaviour and there was a very strong influence over the children.
I turn then to the incident that began on 24 July. On the afternoon of 24 July, the husband went to the school at 3.15pm and again by 3.30pm neither child had appeared. He ascertained that the children had been at the school that day and he was unable to contact them. He said he sent messages to M and to the wife but received no response. He waited until 4.35pm for a bus that he had been told M was on but when the bus arrived, M was not there. A little after 5.00pm, he made inquiries to find that neither child was to be located at the school so he decided to go to the wife’s home.
Again, to have witnesses with him, he contacted his parents and asked them to accompany him to the wife’s home.
He met his parents outside of the wife’s home about 5.30pm. The parents remained there whilst he did a “sweep” of the area during which absence, the wife returned to the home. He arrived shortly thereafter to be told by his parents that the wife had arrived.
The husband and his parents then went to the front door, rang the doorbell a few times and then started to telephone the wife’s landline and mobile. He said he could observe the wife through the glass but she was ignoring him. He said she finally came to the door but would not open it but opened one of the blinds over the glass. He asked whether the children were there and she replied that they were. He then asked her to send them out but she said she would not and she was not opening the door because she did not trust him and that the children were not coming.
The husband said that he asked the wife to send the boys out to speak with him and she left whereupon the boys came to the door. He said he spoke to them through the glass. He said that M told him words to the effect that they did not want to go with him until the orders were changed and he could pick them up on the following morning which was the Saturday. He said that they should open the door but they replied that they would not. He said the wife then reappeared and he told her she was in breach of the orders and she denied that she was. He said he heard nothing from the wife by way of encouragement of the children to go.
The wife’s evidence about this was revealing. She said that she was shopping when she was made aware about 5.30pm of what had occurred. It was only when she came outside of the shopping centre that she realised that there was a message for her. She said she immediately drove home and noticed the husband’s parents outside of the house. She said she did not approach them because she was interested to find out what was happening with the children. She said she went inside and spoke to the boys at which time, the husband and his parents were actually on the porch. She said she located the boys in the house and that they animatedly said they were not going with their father.
The wife then said that she told the children that this was “not fair” because it was their father’s time and it was appropriate that they go with him. She said she went downstairs and told the husband to wait as she would get the boys to come down. She then went back to the boys and told them that she wanted them to speak to their father. She confirmed that the husband was polite. She said she then heard the boys conversing with their father.
The husband was probed about this period of time and he confirmed that the wife had floated backwards and forwards so she was not directly with the children when the husband was talking to them. Counsel for the wife put to the husband that the wife was not prompting the children about what to say and he confirmed that that was the case. He said that she certainly did not tell them to say anything particular. He accepted that she moved right away and when he wanted to speak to her, it was the children who went and got her. He denied telling the wife that she had to force the children out but he did say that he asked her to open the door and send the children out to speak to him.
Herein lies the dilemma. The husband’s preferred solution was that she should tell the children forcibly, verbally and assertively that it was her expectation clearly for them to go.
Counsel for the husband cross-examined the wife about what should have and perhaps could have been done. It was suggested she could have exerted authority. Her reply was that she did but it did not work and she believed the children were genuinely frightened.
The wife was asked whether it was appropriate for the children to be negotiating with their father and her response was that the problem was between he and his sons and whilst it was her problem, it was something that had to be sorted out between father and sons. She said she asked the children to speak to him because it was appropriate he hear from them about what they were saying.
Finally, counsel for the husband suggested to the wife that what she was doing was putting power into the hands of the children and she agreed that that was possible.
As with the first allegation, I find that at the school, the wife was not aware of the actions of the children. As with the first count, there is nothing in the evidence to suggest that she orchestrated the situation for the children to leave the school to avoid spending time with their father. The third allegation therefore fails.
In respect of the time at the wife’s home, I accept the wife’s version of what occurred in terms of being given the message that the children were at home and finding them upon her arrival. I accept her evidence that that is exactly the nature of the conversation that she had with them to which I have referred.
It is clear however that the children have now learnt that the wife is likely to do no more than tell them what she thinks they should do. On the evidence, there is no indication of any attempt at coercion. The wife was given every opportunity to tell me what other options were open to her if any. She did not offer any.
The wife made it abundantly clear that she did not think the orders made in March 2009 were in the best interests of the children. She conceded that the children had been made aware of her views.
The wife conceded that after the orders were made she told them that they were to spend “more time” with their father than they had up to that point. She also told them after the orders were made that witnesses had filed statements about their father’s behaviour. She said that the boys were aware that others were making those sorts of comments about the husband’s behaviour. When asked about whether the boys were aware of her attitude towards the husband’s behaviour, she said that they had concluded that rather than having been told.
In her email to M’s teacher, she made reference to the fact that M was upset with the outcome. It must be remembered that this email was only days after the hearing was concluded. The wife conceded that she told M about the time that he was to spend with his father and his response was to say that the Court was punishing him in circumstances where the Court did not know how his father treated him. She said she told him that the Court did not see it that way but rather that it was more important that he spend time with his father. She said in respect of M, he had made clear that he had wanted to go to Court and that she had made clear that it was important that M be heard.
Of concern is the fact that after the March hearing, the wife made it clear to M that the orders were not a permanent fixture. The only conclusion that could be drawn from that was that consistently with her statement to the teachers, the issue was temporary and going to be reviewed in May. When the subject was put to her about what the duration of the orders meant, she said that she told M to see how the orders would go.
In respect of the nature of the relationship between the wife and the children, she confirmed that she spoke to them as honestly as possible and that she tried to put a positive slant on the orders by saying that they may turn out better than the children thought. However, she conceded that she made it clear that she had told the children that she was not happy about the orders and that they knew that. Whether that was the way she expressed it or not, matters little. The children clearly understood the orders of the Court were not their mother’s proposed outcome in terms of what she saw as being in the best interests of the children. It must be remembered that these children are emotionally dependent upon the wife, she being their primary carer. That gives rise to a dilemma. It was suggested to the wife that she could have marched the children to the door but her response was that she could not do that if they did not want to go. It was suggested to her that having regard to their vulnerability, she could direct them and they would obey. She disagreed because there was a thinking process with the children.
A critical piece of evidence is the fact that when she spoke to the children whilst the husband was on the doorstep on 24 July, she told them that their father would like to speak to them. She did not say to them that he was there to pick them up. Her view was the children would not have accepted that. If that is so, it is worrying.
The husband was critical of the wife for not opening the door of the home. The wife’s response was that she did not trust him. Her view was that she believed he would have come in and that he and possibly the children may have been hurt and “emotionally scarred”. No-one will know whether that is the case because the attempt was not made. The children must have known that their mother was not going to force them out nor open the door to allow their father in. The lack of forceful response empowered the children. I do not advocate that the wife should have physically dragged either or both of the children outside of the house and locked them on the porch with their father. There is a step well before that in which the children should have been told that they were going with their father rather than it was simply expected of them. The wife made clear that she had told the children that what they were doing was unfair and that their father had entitlements but those messages had a hollow ring because they were not backed up with any action.
It may not have been possible for the wife to take such forceful action because she may have appeared hypocritical to the children having regard to what she told them after the March 2009 orders and how they perceived her stance as not accepting the orders being in their best interests. But therein lies the dilemma for the wife. It was the Court who chose the orders and made the finding that it was in the best interests of the children that certain things occur. It was her responsibility not to involve the children in the adult concepts. It was also her responsibility not to be critical of the Court orders directly or by inference. It was her function to ensure that the children carried out what the Court had found to be in their best interests. If it transpired that that was inconsistent with what she had told the children prior to the March orders, she has to take responsibility for that position. She had the responsibility of ensuring after March 2009 that if the children claimed that they would not accept the orders, as a responsible parent, she would discipline them in the same way as any other parent would discipline a child by removing privileges if the child was defiant.
The flow-on effect of what has occurred can best be seen on the weekend immediately prior to the continued hearing before me. I began the hearing on 18 August 2009 and had to adjourn it. In the intervening weekend, the husband had time with the children. On the Sunday morning of that weekend, when the children and he awoke, they had a discussion about the activities that they might involve themselves in during that day. The husband’s evidence was that all was calm. He then left the children whilst he showered but upon his return, he found that they had run away. This was the fifth time that the children had run away. Ultimately, both husband and wife searched for the children and to that extent, the wife must be given credit. Both parents were driving separate cars when they found the children virtually at the same time. The husband’s evidence was that he pointed to the children to get into the car and they did so. They had little choice but, to her credit again, the wife did not interfere. Thereafter, the husband’s time with the children concluded without problem.
It is a worrying matter that the children seemed to have taken matters into their own hands to the extent of running away. Having regard to what I have just said about the position that the wife should have adopted since March 2009, the only solution open to the Court in those circumstances is to put a positive obligation upon her to return the children to the husband in the event that any such incident occurs in the future. In addition, the wife must adopt a disciplinary approach by making it clear that privileges in her household will be denied until the children comply with what she desires namely the compliance with the orders of the Court.

The provisions of Division 13A of the Act apply to contraventions.
Section 70NAA(1) says:
(1) This Division deals with the powers that a court with jurisdiction under this Act has to make orders to enforce compliance with orders under this Act affecting children
The emphasis is on enforcing compliance with orders. It is coercive rather than punitive. (See McClintock and Levier (2009) FLC 93-401).
Section 70NAA(2) provides:
(2) The court always has the power to vary the order under Subdivision B. In doing so, the court will have regard to any parenting plan that has been entered into since the order was made (see section 70NBB).
From a drafting perspective, s 70NAA is supportive of the view that the focus of the Court should be on making its orders work. That provision has been expanded in s 70NBA(1) which reads:
(1) A court having jurisdiction under this Act may make an order varying a primary order if:
(a)proceedings in relation to the primary order are brought before a court having jurisdiction under this Act; and
(b)it is alleged in those proceedings that a person committed a contravention of the primary order and either:
(i)the court does not find that the person committed a contravention of the primary order; or
(ii)the court finds that the person committed a contravention of the primary order.
Oddly enough, the Court only has to:
(a)have proceedings before it under the Act (and not necessarily contravention proceedings); and
(b)make a finding one way or the other about the person having “committed a contravention”
to then have power to vary the primary orders; that is, to make a parenting order.
Section 60CA then applies and the Court must regard the best interests of the child as the paramount consideration. Whilst the best interests must be paramount, they are not the only consideration. Another consideration must also be giving effect to s 70NAA(1), that is, to make orders that work.
Section 60CB makes clear that the approach to working out a parenting order applies to any proceedings in Part VII in which the best interests principle applies.
If the contravention as proved was a serious breach, the Court could make a compensatory time order unless it would not be in the best interests of a child or a court could make the person who breached the order pay all of the costs of another party unless it would not be in the best interests of a child.
Section 70NEB sets out what a court may do if it finds that the contravention was less serious but without reasonable excuse. One option for the Court is to make a compensatory parenting order but under s 70NEB(5), the Court could only do that if it was in the child’s best interest to do so. None of the orders in s 70NEB require a court to first consider the best interests of a child.
In both the serious and less serious cases of contravention, a compensatory order is, in reality, a parenting order which would be governed by the best interest principles anyway.
If a contravention is not established then unlike the other divisions, the Court is only empowered in the sub-division to deal with costs. Presumably however, because of s 70NBA, the power is still there to make some other parenting order. Without saying so, the Court must have power to dismiss a contravention application if it is not proved.
If a contravention application is proved but a reasonable excuse is established, the Court under s 70NDB may make a compensatory time order and must consider doing so. However, the Court must not make such an order if it would not be in the child’s best interests. That in reality is the same concept as applying s 70NBA except that this is the only time that the Court must consider a compensatory order. To suggest that a compensatory order is different from varying the primary parenting order seems nonsense.
Many of the sections are confusing, repetitive and circuitous. They need to be simplified.
I turn then to the question of how these facts should be applied having regard to the law.
The first step is to determine whether there has been a breach of the order because s 70NBA cannot be applied until there is a finding.
Section 70NAC provides:
A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:
(a)      where the person is bound by the order--he or she has:
(i)       intentionally failed to comply with the order; or
(ii)made no reasonable attempt to comply with the order; or
(b)      otherwise--he or she has:
(i)intentionally prevented compliance with the order by a person who is bound by it; or
(ii)aided or abetted a contravention of the order by a person who is bound by it.
The simplicity of the wording in s 70NAC belies the complexity of the myriad possibilities of what actions constitute the failure to comply or attempt to comply with, an order.
The answer lies in a variety of the provisions in Division 13A and elsewhere.
Section 70NAD reads:
For the purposes of this Division:
…
(b)a parenting order that deals with whom a child is to spend time with is taken to include a requirement that people act in accordance with section 65N in relation to the order; and
…
That in turn directs attention to s 65N which reads:
(1) This section applies to a parenting order that is in force in relation to a child to the extent to which the order deals with whom the child is to spend time with.
(2) A person must not:
(a)hinder or prevent a person and the child from spending time together in accordance with the order; or
(b)interfere with a person and the child benefiting from spending time with each other under the order.
Whilst Division 13A refers to orders, it is intended to relate to parenting orders.
Section 64B(1) reads:
(1) A parenting order is:
(a)an order under this Part (including an order until further order) dealing with a matter mentioned in subsection (2); or
(b)an order under this Part discharging, varying, suspending or reviving an order, or part of an order, described in paragraph (a).
Section 64B(2) sets out all manner of things that a parenting order may deal with.
Section 65DA(2) creates a duty for the Court to include in the orders that it makes, the obligations the order creates. Prior to 1 July 2006 with the operation of the amendments to the Act, this Court has traditionally said that there were implied provisions in orders. (See Stevenson and Hughes (1993) FLC 92-363). Save for one situation, obligations imposed by courts must be set out in the order. That is particularly so where, as here, there is an allegation that the wife has been a passive bystander rather than making a positive attempt to make the orders work.
In the orders made on 27 March 2009, paragraph 7 reads:
That pursuant to Sections 65DA(2) and 62B the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.
Attached to the order and obviously by reference to paragraph 7 of it, the following appears:
Your legal obligations
·You must do everything a parenting order says. In doing so, you cannot be merely passive but must take positive action and this positive obligation includes taking all reasonable steps to ensure that the order is put into effect. You must also positively encourage your children to comply with the orders. For example where the order states your children are to spend time with another party, you must not only ensure that the children are available but must also positively encourage them to go and do so. There are agencies in the community that can help you and your family adjust to and comply with the order (see details on page 1).
·The order remains in force until a new parenting order or parenting plan changes it in some way.
·Even if the needs or circumstances of you, the child or the other party change, the court order applies until it is formally changed by a court or, in some situations, you enter into a parenting plan with the other party.
·Sometimes people talk to each other about changing arrangements set out in a parenting order. These talks do not change the order.
If you and the other party agree to change the arrangements, you may enter into a parenting plan or apply for consent orders that vary the existing orders. For more information about consent orders, go to call 1300 352 000 or visit a family law registry near you.
If you want to change a parenting order and the other party does not agree, family dispute resolution can help you and the other party work through your disagreement. Resolving issues this way is less formal than going to court and should cost less in money, time and emotion. If an agreement cannot be reached, you may consider applying to a court for orders.
It is debateable therefore whether there is any basis to contemplate implied provisions in orders having regard to s 65DA(2). The exception to that is obviously s 70NAD which by reference draws in s 65N. However, when looking at s 65N, the provision is much the same as the wording of the obligations to which I have just referred.
Thus, going back to the starting point, to have contravened an order therefore, a person bound by it must either have intentionally failed to comply with the obligations created by the order or to have made no reasonable attempt to comply with those obligations. Section 70NAC is unequivocal. A contravention can only occur in one of those two circumstances.
The onus of proving either or both of those circumstances lies with the applicant on the balance of probabilities. It is an objective test but with certain subjective aspects. In this case, what was the wife’s subjective response to her obligation viewed objectively? I could not find on the evidence that she formed the view that she would not comply. The second test however is whether she made a reasonable attempt to comply. That must be viewed objectively as well.
I have already found that the wife could have done more. The question is whether that is a breach of the obligations annexed to the order. In my view there were a number of options available to the wife other than simply forcibly putting the children out into the hands of the husband. Accordingly and for those reasons, because of the obligations contained in the order, I find that the wife has made no reasonable attempt to comply with the order and as such, allegations two and four are established.
Section 70NAA(3) then provides the next step. It reads:
(3) The other orders that the court can make depend on whether:
(a)a contravention is alleged to have occurred but is not established (Subdivision C); or
(b)the court finds that a contravention has occurred but there is a reasonable excuse for the contravention (Subdivision D); or
(c)the court finds that there was a contravention and there is no reasonable excuse for the contravention (Subdivision E for less serious contraventions and Subdivision F for more serious contraventions).
Thus, having found allegations two and four proved, which category does the wife fall into? In this case, it can only (b) or (c).
Section 70NAE(1) provides:
(1) The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7).
In so far as any of the sub-sections could be relevant, much depends on the circumstances of what is alleged. Here, the husband’s complaint relates to s 70NAE(5). That reads:
(5) A person (the respondent ) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:
(a)the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and
(b)the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
It is important to go back to s 70NAE(1). Here the Act points to the various sub-sections as possible excuses (provided they are reasonable) but the use of the words “include, but are not limited to” means that a court is at large in considering any reasonable excuse at all. Thus, the health and safety ground is not the only ground open for consideration by the Court. Notwithstanding the passing of the 2006 amendments, there are authorities which are still relevant and which indicate that there are certain excuses which are not acceptable. In the Marriage of Gaunt (1978) FLC 90-468 the Full Court (Evatt CJ, Emery SJ and Hogan J) said:
The essential question is this – can a party who does not agree with a court’s decision about access defy the order and then plead that in preventing access his actions were based on his generally held belief that to allow the order to operate would be contrary to the welfare of the child? The question of the child’s welfare is, of course, the paramount consideration for the Court in determining the access question in the first place. To allow a party to arrogate to himself a supervening power to make an independent decision on that issue and to rely on that decision to escape from compliance with a court’s order or from the consequences of non-compliance would undermine the purpose and intentions of the Act.
Similar sentiments were expressed by Smithers J in O’Brien and O’Brien (1993) FLC 92-396.
It seems clear then that any reasonable excuse must be considered but a respondent to a contravention application cannot ignore the order of the Court on the basis that he or she believes that the order is not in the best interests of the child.
The test of what is reasonable in the circumstances must be an objective one because otherwise, a subjective intention would thwart the very operation of Division 13A.
The next relevant provision is s 70NAE(2) which reads:
(2) A person (the respondent ) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if:
(a)the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and
(b)the court is satisfied that the respondent ought to be excused in respect of the contravention.
The onus of proving a reasonable excuse exists falls upon the person wishing to rely upon it. As such, if s 70NAE(2) is to be relied upon, the respondent bears the onus of proving that he or she did not understand, at the time of the contravention, the obligations imposed by the order. However the Court has to be satisfied that even if that lack of understanding existed, the respondent ought to be excused in any event.
On the facts of this case, there are two circumstances to be contemplated. First, counsel for the wife said that the wife should be excused because pursuant to s 70NAE(5), she believed the deprivation of the husband’s time with the children was necessary to protect their health and safety. This was a reference to the wife’s fear of opening the door of the home and allowing the husband to converse with the children. It is important to note that s 70NAE(5) refers to a belief based on reasonable grounds. To have that belief, the wife would have to show that there was evidence of some strength to make her form that belief. The wife’s evidence about that arose during her cross-examination by counsel for the husband. She said that she believed the husband would have come into the house had she opened a door and that “one, two or three” people would have been hurt and emotionally scarred. It had been put to the wife that she could have “marched” the children to the door. Her response was that she could not do that if they didn’t want to go. It was put to her that she could have “directed” them to go and the children would follow. She disagreed.
This particular incident was in the context of a concession by the wife that the husband was polite at the door and that the only dialogue between she and the husband was that she would get the boys to come and speak with him. When it was put to the wife that it was inappropriate for the boys to negotiate with their father, she responded by saying that it was a problem between father and sons. Finally, it was put to her that she could have exerted authority as I have indicated above and her response was that she had done so but that it did not work and that she believed that the children were frightened.
In addition to those pieces of evidence, there are two other facts that need to be contemplated. First, the husband was not prepared to attend the house without his parents. As such, the wife was aware that there were a number of people standing on the doorstep. Secondly, there was considerable delay between the wife first meeting the children and the subsequent attendance of the husband. That occurred in the first alleged contravention but the second one was much different. Whilst the wife relied upon alleged past misconduct of the husband to give rise to the fear that she expressed, I could not find on the evidence that her fear on these occasions was reasonable. There has been a considerable period of time elapsed since separation and there has not been any suggestion in the evidence that the husband attended at the home other than in the circumstances I have described. The children’s grandparents were present and there is no suggestion in the wife’s evidence of any past impropriety on their part. It may have been unwise for them to have been present for the purposes of the husband having “witnesses” because that may have given rise to something of a siege mentality in the wife. However, there is no evidence that the wife had previously had any such problems. Accordingly, in the circumstances the wife could not be said to have had a reasonable view as required by s 70NAE(5)(a).
Is there some other reasonable excuse upon which the wife could rely because of the unlimited nature of s 70NAE(1)?
The wife’s evidence was she had done all she could and even if I did not accept that, she said she could not get the children to physically go. The dilemma with that argument is two-fold. The first is that I have found there were other things that she could have done to remove the power from the children such as by imposing disciplinary measures. Secondly, it was common ground between the parties that the children spent time after each of these incidents with their father and that such periods coincided to a large degree with what the wife (and the children) wanted. The fear to which the wife referred seemed to have evaporated shortly after this confrontation. In my view therefore, no reasonable excuse could be established based on these facts.
The next step is to determine whether the contravention falls within sub-division E or F. Counsel for the husband urged me to find that the contraventions fell within the serious category. Section 70NAE(1) directs attention to s 70NAE(2) or (3). Section 70NAE(3) relates to a previous order in respect of contraventions. That does not apply here as there is no suggestion of any previous order relating to contraventions. Thus, s 70NAE(2) applies. It reads:
(2)A person (the respondent ) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if:
(a)the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and
(b)the court is satisfied that the respondent ought to be excused in respect of the contravention.

There has been no adjourned proceedings here as contemplated by the Act.
Section 70NEA(4) provides:
(4) This Subdivision does not apply if, in circumstances mentioned in subsection (2), the court dealing with the current contravention is satisfied that the person who contravened the primary order has behaved in a way that showed a serious disregard for his or her obligations under the primary order.
This provision requires a court to examine the whole set of circumstances to see whether the contravention showed a serious disregard for the obligations under the order.
The Act does not define the distinction between serious and less serious. In Elspeth and Peter; Mark and Peter; and John and Peter (2007) FamCA 655, the Full Court contemplated the issue. Faulks DCJ, Kay and Penny JJ said that there were a number of attempts by various courts to define seriousness. Their Honours said:
61.The theme that emerges from an examination of several of decisions by Federal Magistrates is that “serious disregard” tends to be found in cases of deliberate, pre-meditated non-compliance with the orders; and continued and protracted breach.
…
66.What seems to be the common thread is that the more serious sanctions should only be invoked if there is a persistent disregard of an obligation or a clearly wilful and deliberate attempt to resist carrying out an order. Mere passivity on a first breach does not appear to be sufficient to attract the more stringent sanctions set out under subdivision F.
In my view, the wife does not fit within that serious category based upon the two contraventions that I have found. She certainly fits within sub-division E.
Section 70NEB provides options that are open to me. The provision is as follows:
(1)If this Subdivision applies, the court may do any or all of the following:
(a)      make an order directing:
(i)the person who committed the current contravention; or
(ii)that person and another specified person;
to attend a post‑separation parenting program;
(b)if the current contravention is a contravention of a parenting order in relation to a child--make a further parenting order that compensates a person for time the person did not spend with the child (or time the child did not live with the person) as a result of the current contravention;
(c)adjourn the proceedings to allow either or both of the parties to the primary order to apply for a further parenting order under Division 6 of Part VII that discharges, varies or suspends the primary order or revives some or all of an earlier parenting order;
(d)make an order requiring the person who committed the current contravention to enter into a bond in accordance with section 70NEC;
(e)if:
(i)the current contravention is a contravention of a parenting order in relation to a child; and
(ii)the current contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period); and
(iii)the person referred to in subparagraph (ii) reasonably incurs expenses as a result of the contravention;
make an order requiring the person who committed the current contravention to compensate the person referred to in subparagraph (ii) for some or all of the expenses referred to in subparagraph (iii);
(f)make an order that the person who committed the current contravention pay some or all of the costs of another party, or other parties, to the proceedings under this Division; and
(g)if the court makes no other orders in relation to the current contravention--order that the person who brought the proceedings in relation to the current contravention pay some or all of the costs of the person who committed the current contravention.
(2)The court must not make an order under paragraph (1)(a) directed to a person other than the person who committed the current contravention unless:
(a)the person brought the proceedings before the court in relation to the current contravention or is otherwise a party to those proceedings; and
(b)the court is satisfied that it is appropriate to direct the order to the person because of the connection between the current contravention and the carrying out by the person of his or her parental responsibilities in relation to the child or children to whom the primary order relates.
(3)If the court makes an order under paragraph (1)(a), the principal executive officer of the court must ensure that the provider of the program concerned is notified of the making of the order.
(4)      If:
(a)the current contravention is a contravention of a parenting order in relation to a child; and
(b)the contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period);
the court must consider making an order under paragraph (1)(b) to compensate the person for the time the person did not spend with the child (or the time the child did not live with the person) as a result of the contravention.
(5)The court must not make an order under paragraph (1)(b) if it would not be in the best interests of the child for the court to do so.
(6)In deciding whether to adjourn the proceedings as mentioned in paragraph (1)(c), the court must have regard to the following:
(a)      whether the primary order was made by consent;
(b)whether either or both of the parties to the proceedings in which the primary order was made were represented in those proceedings by a legal practitioner;
(c)the length of the period between the making of the primary order and the occurrence of the current contravention;
(d)any other matters that the court thinks relevant.
(7)      The court must consider making an order under paragraph (1)(g) if:
(a)the person (the applicant ) who brought the proceedings in relation to the current contravention has previously brought proceedings in relation to the primary order or another primary order in which the applicant alleged that the person (the respondent ) who committed the current contravention committed a contravention of the primary order or that other primary order; and
(b)on the most recent occasion on which the applicant brought proceedings of the kind referred to in paragraph (a), the court before which the proceedings were brought:
(i)was not satisfied that the respondent had committed a contravention of the primary order or that other primary order; or
(ii)was satisfied that the respondent had committed a contravention of the primary order or that other primary order but did not make an order under section 70NDB, 70NDC, 70NEB, 70NFB or 70NBA in relation to the contravention.
I have contemplated all of those options. I appreciate that the parties have been attending upon psychologist Mr P and have recently dealt with psychologist Ms F.
Notwithstanding that the wife is professional with otherwise apparent sound parenting skills, this is an opportunity for her to reflect upon those skills. I appreciate with her busy professional schedule and demanding home life, finding time is not easy. However, time may be found for court hearings quite easily. In those circumstances, the time to think about the impact of these proceedings on the children may be valuable. I intend that she reflect on her own parenting skills.
Section 70NEB(1)(a)(ii) is to be widely construed. The husband too might benefit from some reflection because of his need to understand how the stressors of litigation impact upon the children. In this case, he attended upon the wife’s house with witnesses and now rightly or wrongly, believes the wife is specifically influencing the children against him. Section 70NEB(2) should be applied here because, whilst the husband had the entitlement to the time with the children under the order, the final hearing is not far away. The children have sadly become embroiled in these proceedings whether they have been empowered or not. The recent event not covered by the contravention proceedings under which the children ran away is disconcerting. It may be time for the husband to reflect on his parenting skills as well rather than simply litigating criticism of the skills of the wife.
Both parties should therefore undertake a post-separation parenting course and I propose to order pursuant to s 70NEB(3) that the Registry Manager send a copy of these orders to the program provider.
I turn then to the issue of the compensatory time. I told the parties I would contemplate the situation after the determination of this matter. That includes the application in a case of the wife filed on 27 July 2009. I do not propose to do that now having regard to the time before trial and the fact that I do not know the impact of recent events upon the children. I doubt if I could, on submissions alone, determine matters of fact to enable me to feel sufficiently comfortable about the requirements of s 70NEB(4).
I will however contemplate either written submission on costs because of s 70NEB(1)(f) and s 117 generally or the parties can have the costs reserved to the trial. I expect to receive written submissions one way or the other.

I certify that the preceding One Hundred and Thirty Three (133) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate:

Date: 3 September 2009