ADEL & BANES

[2019] FamCA 7

FAMILY COURT OF AUSTRALIA

ADEL & BANES [2019] FamCA 7

FAMILY LAW – INTERNATIONAL CHILD ABDUCTION – international parenting dispute  - where the submission by the left behind parent in the United States of America submits that this court does not have jurisdiction to make parenting orders  is not accepted.

FAMILY LAW – JURISDICTION – distinction between the jurisdiction and the court’s power to make orders.

FAMILY LAW – JURISDICTION – impact on court’s power to make parenting orders inconsistently with a registered overseas child order.

FAMILY LAW – JURISDICTION – impact of 1996 Child Protection Convention on court’s power to make parenting orders.

FAMILY LAW – JURISDICTION – impact of pending Hague return application on court’s power to make parenting orders.

FAMILY LAW – INTERNATIONAL CHILD ABDUCTION – habitual residence.

FAMILY LAW – PRACTICE AND PROCEDURE – preparation of expert social science report – preliminary Hague assessment – direct judicial communication.

Family Law Act 1975 (Cth)
Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction
Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children
Family Law (Child Abduction) Regulations 1986
Family Law (Child Protection Convention) Regulations 2003

Adel & Banes [2018] FamCA 821
In the marriage of Hanbury Brown (1995) 20 Fam LR 334
LK v Director-General, Department of Community Services [2009] HCA 9
Re B (A Child) (Habitual Residence: Inherent Jurisdiction) [2016] UKSC 4
Re LC (A Child) (Custody:Habitual Residence) (Reunite: International Child Abduction Centre intervening) [2014] UKSC 1]

APPLICANT: Ms Adel

RESPONDENT: Mr Banes

INDEPENDENT CHILDREN’S LAWYER: Mr M Finn

FILE NUMBER: MLC 3771 of 2017

DATE DELIVERED: 3 January 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 3 January 2019

REPRESENTATION

SOLICITOR ADVOCATE FOR

THE APPLICANT:

Mr Quereshi

SOLICITOR FOR THE APPLICANT: Starnet Legal

THE RESPONDENT: In Person Via Telephone Link

SOLICITOR ADVOCATE FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Finn

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Clark Family Lawyers

Orders

IT IS ORDERED THAT:

1. If this matter is not otherwise before the Court prior to 19 February 2019 it be listed on that date at 9.00 am before me for directions (“the adjourned date”) and each party ensure that they have read and considered the Regulation 26 report referred to herein prior to the adjourned date.

2. A sealed copy of this Order be sent by the Hague Registrar to the Proper Officer of the State Central Authority for Victoria that advises that the Court is informed that the father has made an application for the return of the child X born … 2013 (“the child”) to the United States of America pursuant to the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the 1980 Convention”).

IT IS DIRECTED THAT:

1. Any application for the return of the child to the United States of America pursuant to the Family Law (Child Abduction Regulations) 1986 (“the Regulations”) be listed before me on the adjourned date and be filed under the same file number as the current proceedings.

IT IS ORDERED THAT:

1. Paragraph 9 of the of the Order made on 10 October 2018 be varied to delete reference to s62G(2) of the Act and insert in lieu thereof Regulation 26(1) of the Regulations. A preliminary Hague report be prepared in relation to the child X born … 2013 (“the child”) and in particular the Family Consultant:-

   (a)Explain to the child in very simple terms and to the extent (if any) that such concepts can be understood by her, that the purpose of the proceedings which must be first determined is whether the court which is to decide her parenting arrangements should be the court in Australia or the court in the United States of America.

   (b)Report on whether the child presents as physically or emotionally neglected and/or in need of immediate psychological or other intervention.

   (c)Report on whether prior to the final determination of any Hague return application, it would be in the best interests of the child to have further or other communication with the father and, if so, how frequently and under what conditions.

   (d)       Ask the child (and report her response):-

   (i)If the court orders that that child be returned to the United States of America, is there anything that would make the return easier for the child;

   (ii)If the court refuses the application for return is there anything that would make staying in Australia easer for the child.

   (e)Any other matter which the family consultant considers bears on the interest of any or all of the children and ought to be brought to the attention of the Court.

   Otherwise, the Family Consultant report on the matters referred to in the balance of paragraph 10 but only on an interim basis and insofar as it is practicable to do so without having to interview each parent.

2. For the purpose of the preparation of the report a family consultant nominated by the Director of Child Dispute Services in the Melbourne Registry of this Court be available to see the child.

3. The mother comply with all reasonable directions as to attendance of the child on the family consultant as and when required by the family consultant NOTING THAT the date for the assessment interview will be 17 January 2019 and the mother to bring the child to Level 5 of this Registry of the Court by 9.15 am on that day or as may otherwise be advised by the Director of Child Dispute Services to the mother. 

4. The report is to be released by not later than 15 February 2019.

5. The father do all acts and things necessary to send to the independent children’s lawyer four copies of the material to which he refers as recordings of electronic communication between himself and the child in his affidavit sworn or affirmed on 27 December 2018 and that such material be sent by USB stick (4 copies) to the independent children’s lawyer and then produced by the independent children’s lawyer as follows:

   (a)Two copies to the subpoenaed documents clerk of this Registry of the Court;

   (b)       One copy to the practitioners for the mother;

   (c)       One copy to be retained by the independent children’s lawyer.

6. The family consultant who prepares the preliminary Hague report have access to the recordings of the electronic communications referred to in the preceding order and all other documents produced on subpoena and released to the parties for inspection.

7. By not later than Friday 11 January 2019 the mother make file and serve any affidavit material upon which she relies in response to the affidavit of the father sworn or affirmed on 27 December 2018 NOTING THAT if the mother fails or neglects to file responding evidence she will be deemed to have admitted the matters deposed to by the father.

8. Paragraph 4 of the Order made on 10 October 2018 be varied so that the duration of the electronic communication provided for therein is up to 45 minutes duration and as follows:

   (a)The mother be responsible for initiating the electronic communication on an audio-visual device;

   (b)       The communication take place:

   (i)At 2.00pm on Saturday and Sunday Melbourne time;

   (ii)At 6.30 pm each Wednesday (Melbourne time).

9. In the event that the mother is unable to secure a connection with the father she retain an electronic record that the communication was initiated by her and continue to attempt to contact the father for not less than 5 minutes.

10. There be liberty to apply in relation to any alleged non-performance or non-compliance by either parties with the arrangements for electronic communication between the child and the father as provided in this Order and any such matter may be listed before me at the initiative of the independent children’s lawyer by liaison with my Associate – email ...

11. In the event that the mother is served with a return application under the Regulations she file and serve within 14 days of service;

    (a)A response which specifies with precision any basis upon which she opposes the return of the child to the United States of America pursuant to the Regulations;

    (b)Any affidavit evidence in support of her response to the Hague return application.

12. I reserve liberty to the independent children’s lawyer to contact my Associate to alter the adjourned date to a date following the date by which the wife must file an answer to any Hague application and to do so administratively.

13. My reasons for decision this day be transcribed and a copy sent to each party to the proceedings and to the Proper Officer of the State Central Authority for Victoria.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Adel & Banes has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3771 of 2017

Ms Adel

Applicant

And

Mr Banes

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. This matter comes before me having been adjourned from the hearing on 10 October 2018. It is the competing parenting applications in relation to the child, who is five years old. She resides with her mother in Australia.  The child’s father resides in the United States of America. 

2. I have rehearsed the factual background of the matter in my reasons of 10 October the case neutral citation for which is [2018] FamCA 821.

3. The proceedings include registration in Australia of parenting orders made in the United States of America and competing applications by the parents for parenting orders within Australia.  The mother’s application is predicated on her remaining in Australia with the child, whereas the father’s application is to implement the orders earlier made in the United States of America, which included an order that he have residence of the child. 

4. These Australian proceedings are running in parallel to some proceedings in California and the proceedings in California have apparently been adjourned to late January 2019 for review.

5. By paragraph 3 of the Order made on 10 October 2018, all parties were to make submissions today in relation to jurisdiction and to have exchanged any written submissions in that regard. The mother and the Independent Children’s Lawyer are both content that the Family Court of Australia has jurisdiction to make parenting orders in relation to the child. They make no submissions. The father contends otherwise. In the place of filing any written submissions, he relies on certain paragraphs of his affidavit sworn or affirmed on 1 October 2018 [22].

6. At paragraphs 4 to 15 of his affidavit, the father makes the following points:

   a)The Superior Court of California, County of City D, has jurisdiction over this case, and it is the only Court that has jurisdiction to make child custody and parenting orders.

   b)The child was “abducted” by the mother on 1 November 2016, after which the father filed an application in the United States seeking, inter alia, parenting orders.

   c)The California Family Code, section 2320(b) has a residency requirement for the purpose of establishing jurisdiction.  A party to a case has to be resident of California for six months and of the county in which the proceedings are filed for three months.  The father contended that the mother and the child met the jurisdictional requirements.

   d)The mother voluntarily submitted herself to the jurisdiction of the Californian Court by participating in proceedings from 8 February 2017 until 15 June 2018.

   e)The Court in California made findings and orders at various points, including, it is deposed, a finding that the Australian Court had no jurisdiction over the child.

7. At paragraph 65 of the father’s affidavit, he deposes:

   The Family Court of Australia does not have jurisdiction to make child custody and parenting, or any other orders Ms Adel (the mother) seeks.  The California Court has a jurisdiction over Ms Adel, the child and this entire case, and it is the only Court that can make child custody orders.  As the signatory of the Hague Convention, Australia and the Australia Court should honour and enforce the registered Californian orders, which are enforceable both in the USA and in Australia.

8. For the below reasons, I do not accept the submission of the father that this court is without jurisdiction to make parenting orders in relation to the child.

Jurisdiction: generally

1. Jurisdiction to make parenting orders is conferred on this court by section 69H(1) of the Family Law Act 1975 (“the Act”). The court has jurisdiction to decide any parenting issue which arises under Part VII of the Act. Certain provisions of the Act referred to below provide for how the court’s power is to be exercised including what orders can be made, the children in respect of whom orders can be made and who may apply for orders.

2. Section 65C of the Act provides that a parenting order in relation to a child may be applied for by either or both of the child’s parents.

3. A parenting order is described in s 64B of the Act as an order that may deal with one or more of the following:

   a)the person or persons with whom a child is to live;

   b)the time a child is to spend with another person, or persons;

   c)the allocation of parental responsibility for a child;

   d)if two or more persons are to share parental responsibility for a child, the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;

   e)the communication the child is to have with another person, or persons;

   f)the maintenance of the child.

   These are referred to below, and in the context of s 70J of the Act, as a “Subdivision C parenting order”.

4. Section 69E of the Act provides, inter alia, that proceedings may be instituted under the Act in relation to a child if:

   a)the child is present in Australia, or is an Australian citizen, or is ordinarily a resident in Australia on the day on which the application is filed;  or

   b)the parent of the child is an Australian citizen, is ordinarily a resident in Australia, or is present in Australia on the day on which the application is filed.

5. Accordingly, prima facie this court has jurisdiction to make parenting orders of the nature sought by the mother and the father in their competing applications.

6. By way of clarification, Part VII of the Act relates to, and is headed, “Children”. Proceedings for the return of children under the 1980 Hague Abduction Convention, which is discussed in detail below, are not Part VII proceedings. They are proceedings under Part XIIIAA – International Conventions, International Agreements and International Enforcement.

Impact of the registration of the overseas child order on the court’s power to exercise jurisdiction 

1. A further consideration is whether the Court’s power to make orders is curtailed by virtue of the child being a child in respect of whom an overseas order has been made and is registered in Australia. 

2. As discussed in my earlier reasons, on 20 September 2018 an order was made by the Superior Court of the State of California in and for the County of City D, which has been registered for enforcement in this Court as an overseas child order.  That order provided that the child live with the father. 

3. Section 70J(1) of the Act provides that, where “a court in Australia is aware that an overseas order is registered under section 70G, [the court] must not exercise jurisdiction in proceedings for the making of a Subdivision C parenting order in relation to a child” unless each person with whom the child is to live, spend time or have contact or who has rights of custody of the child, consents to the exercise of jurisdiction. Here, the father has consented to orders about telephone communication between himself and the child. He does not otherwise agree to any modification of the Californian order or to this court exercising its jurisdiction to make parenting orders at large.

4. Under section 70J(2) of the Act, a registered overseas child order may only be varied and a new order made if this Court is first satisfied of certain jurisdictional facts being:

   a)that there are substantial grounds for believing that the child’s welfare requires the Court exercise jurisdiction in the proceedings (s 70J(1)(b) of the Act); and

   b)the welfare of the child is likely to be adversely affected if an order is not made (s 70J(2)(a) of the Act); or

   c)that there has been such a change of circumstances of the child since the making of the overseas child order that the subdivision C parenting order ought be made (s 70J(2)(b) of the Act).

5. I accept that, absent consent, where s 70J(2) applies the matters referred to in that section are a preconditions to the court exercising its power to make a parenting order.

Impact of the 1996 Child Protection Convention on the court’s jurisdiction

1. The Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children signed at The Hague on 19 October 1996 (“the 1996 Convention”) entered into force for Australia on 1 August 2003. The 1996 Convention is implemented by the Act in Part XIIIAA – Division 4 – International Protection of Children. Additional provisions to facilitate the operation of Division 4 were enacted in the Family Law (Child Protection Convention) Regulations 2003 (Cth) (“the Child Protection Regulations”). It is our legislation and regulations, rather than the 1996 Convention per se, which have the force of law in Australia.

2. The 1996 Convention is concerned with civil measures aimed at protecting children in international contexts.  It takes account of the wide variety of legal institutions and systems that exist around the world.  Its purpose is to avoid legal and administrative conflicts and to build a structure for effective international cooperation in child matters.  It has broad application, covering both private and public measures of protection and care[1] including parental responsibility, parental access and contact and procedural aspects of cases involving children. It addresses the exercise of jurisdiction by authorities within contracting states in relation to other contracting states and non-contracting states by identifying which state’s authorities have preeminent jurisdiction to make orders in relation to a child.  Authorities include courts and administrative authorities.

   [1] HccH, Outline, Hague Convention on Child Protection (September 2008) <>

   The 1996 Convention refers to “measures of protection” which term is inclusively defined and is wider than parenting orders in private family law proceedings or public law measures of child care and protection.  The “measures” are described at Article 3 to include the attribution, exercise, termination or restriction of parental responsibility, as well as its delegation, rights of custody, including rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence, as well as rights of access including the right to take a child for a limited period of time to a place other than the child's habitual residence.  In our regulations, some “measures” are referred to as “Commonwealth personal protection measures” which term is defined by reference to the 1996 Convention and measures directed to the protection of the person of the child as opposed to the property of the child.  Some parenting orders are Commonwealth personal protection measures because they relate to children in families who live across two or more international borders.  

1. Section 111CD of the Act operates to curtail this Court’s exercise of its jurisdiction to make Commonwealth personal protection measures (or orders), in certain situations. Section 111CD is a ready reckoner for identifying which contracting state’s authorities have pre-eminent jurisdiction.

2. The United States of America is not a party to the 1996 Convention but our court’s jurisdiction to make orders in relation to American children may still be impacted by the Act, Part XIIIAA – Division 4 – International Protection of Children. On the facts of this case, if the child remains habitually resident in the United States of America (which is arguable), this Court can exercise its jurisdiction to make parenting orders in relation to her by virtue of her being a child to whom sections 69E(1)(b), (2)(e) of the Act apply (see s111CD(1)(f)). If the child is found to have assumed habitual residence in Australia, the court’s power to make orders is referred to in s111CD(1)(e). The court must be satisfied of the child’s place of habitual residence to know what power it is being requested to exercise. Notably, in the determination of habitual residence:-

   ·The identification of the habitual residence of a child is a broad factual enquiry, looking at the connection between the child and the state (see LK v Director-General, Department of Community Services [2009] HCA 9).

   ·The court is directed to identifying which jurisdiction reflects the greater degree of integration by the child in a social and family environment (see  Re B (A Child) (Habitual Residence: Inherent Jurisdiction) [2016] UKSC 4).

   ·Parental intention is but one of a number of other matters to be taken into account (see Re LC (A Child) (Custody: Habitual Residence) (Reunite: International Child Abduction Centre intervening) [2013] UKSC 75 and Re R (Children) [2015] UKSC 35.

   ·The views of a child as to his/her situation may be relevant. In Re LC (A Child) (Custody:Habitual Residence) (Reunite: International Child Abduction Centre intervening) [2014] UKSC 1 the Supreme Court of the United Kingdom observed that a 13 year old girl’s integration into a new environment had to encompass more than surface features of her life and that her state of mind had some relevance to her integration and whether her residence was ‘habitual’.

3. If the 1996 Convention had entered into force between the United States and Australia (which it has not) and the child is still habitually resident in the United States, my power to make orders (take measures) would be curtailed to the making of urgent orders pursuant to s 111CD(1)(b)(i). An urgent order (measure) has extra territorial effect but will lapse when measures covering the same issues are subsequently taken by authorities in the state of habitual residence.

Impact of a Hague return application on the court’s power to make parenting orders

1. Another development is that the father says that he has made an application to the State Department in the United States of America requesting the return of the child pursuant to the 1980 Convention.  A return application has not yet been filed in this Court, but I consider that this Court has notice that an application is conceivably on its way.  In the ordinary course, the father’s  request to the State Department in the United States will be transmitted to the Australian Central Authority in Canberra, Australia, and then to the Victorian State Central Authority for proceedings to be filed.  I have directed that any such proceedings be filed in this case and travel with it.  A copy of this Order, containing the direction, will be served on the proper officer of the State Central Authority.  If an application is not forthcoming within the next month or so, then I will look again at the matter.

2. Regulation 19 of the Family Law (Child Abduction Convention) Regulations (“the Child Abduction Regulations”) provides that if an application for a return order for a child is made under regulation 14(1) a Court must not make a parenting order, except an interim parenting order, providing for the custody of the child until the return application is determined.

3. The effect of reg. 19 is to curtail my power to make a final residence or other parenting order in relation to the child until the husband’s return application is determined.  The rationale behind this restriction is that, in forum selection proceedings, there is to be no in depth or welfare based enquiry about the child and that a respondent not be permitted to try to legitimise his/her positon by obtaining orders in their favour in the jurisdiction in which the child is present.  

Conclusion on jurisdiction

1. I am satisfied that this Court has jurisdiction to make parenting orders in relation to the child.  However, there are certain fetters of the exercise of that power.

2. At this point a relevant fetter on my power to exercise that jurisdiction is that imposed by reg. 19 referred to above.  Accordingly, amongst other things, I will not proceed to do anything other than make an interim parenting order at this stage.

3. When considering making an interim parenting order, I would need to observe the preconditions under s 70J of the Act.

4. If the Hague return application does not eventuate or if it fails, and the child remains in Australia, I will then consider the import of the registered overseas child order and the preconditions to this court exercising jurisdiction to vary or to discharge that order or make a parenting order generally.  

Preparation of an expert family report

1. On 10 October 2018, I ordered that a s 62G(2) family report be prepared to assist the court determine whether the child’s welfare requires that this court look afresh at her parenting arrangements either because of the change in circumstances – she has been in Australia since November 2016 - or the adverse impact on her of the Californian order now being implemented. This was before the father said that he had lodged an application with the US State Department.

2. Family reports are an important feature of parenting proceedings in this court where a child’s best interests is the paramount consideration.  The primary focus of a family report is the child’s experience, needs, development, relationships and views (to the extent that the child is comfortable and developmentally able to express views) and the impact on the child of the various proposals.  The primary purpose of a family assessment is to provide expert forensic advice to assist the court to make informed decisions in the best interests of the children.  A forensically based assessment may also assist the family to understand the child’s perspective; however, is not the primary focus. 

3. The assessment will be undertaken by one of the Family Consultants who are directly and exclusively employed by the court to make these assessments.

4. The 1980 Convention is a forum selection treaty. A significant difference between parenting proceedings under Part VII of the Act and Hague return proceedings under Part XIIIAA is that the interests of the child is not relevant in Hague return proceedings unless or until one or more of the five exceptions to mandatory return is made out. The court then has discretion to refuse return. Where the court’s discretion to refuse return is enlivened, the child’s interests is a relevant factor informing the exercise of the discretion but is still not the paramount consideration.

5. The arrangements for the family report remain in place but, because the father has now brought a Hague return application, I will modify my order so that the report serves the primary purpose of assisting the court with the more limited issues in the Hague return application.

6. I am advised that the assessment interviews will be conducted on 17 January 2019 and the report will be released on 15 February 2019. 

7. The assessment will be done pursuant to reg. 26 of the Child Abduction Regulations which provides for Family Consultants to prepare reports in Hague proceedings. In this Registry, there is the capacity to prepare a preliminary Hague report which deals with the following:

   (a)Explain to the child in very simple terms and to the extent (if any) that such concepts can be understood by her, that the purpose of the proceedings which must be first determined is whether the court which is to decide her parenting arrangements should be the court in Australia or the court in the United States of America.

   (b)Report on whether the child presents as physically or emotionally neglected and/or in need of immediate psychological or other intervention.

   (c)Report on whether prior to the final determination of any Hague return application, it would be in the best interests of the child to have further or other communication with the father and, if so, how frequently and under what conditions.

   (d)      Ask the child (and report her response) to the following:-

   (i)If the court orders that that child be returned to the United States of America, is there anything that would make the return easier for the child;

   (ii)If the court refuses the application for return is there anything that would make staying in Australia easier for the child.

   (e)Any other matter which the family consultant considers bears on the interest of any or all of the children and ought to be brought to the attention of the Court.

8. Additionally, I will require that the report deal with the matters in paragraph 10 of the Order made by me on 10 October 2018, directed to the jurisdictional facts for the alteration or discharge of a registered overseas child order insofar as that assessment can be made with only the child (not the parents) being interviewed.

9. In due course, it may be necessary to order a supplementary report to assist the court in a consideration of whether the child is settled within the meaning of reg. 16(2)(c) of the Family Law (Child Abduction Convention) Regulations.  Whether this issue of settlement arises is dependent on whether the child was wrongfully removed or retained out of the United States and when the alleged removal or retention occurred in relation to the date of filing of the return application.  No such determination can be made in advance of the return application being filed and the relevant parties being accorded procedural fairness.

10. My impression is that the father’s position has shifted somewhat.  In discussion, he has seemingly moved away from his early position of alleging a wrongful removal in November 2016 to now alleging a wrongful retention in July 2018.  The applicant State Central Authority will have to rely on either removal or retention. It cannot rely on both.  Removal and retention are mutually exclusive concepts (see In the Marriage of Hanbury Brown (1995) 20 Fam LR 334). It must be clear from the outset whether the court is required to make its determination under reg. 16(1) or reg. 16(2) of the Child Abduction Regulations.

Direct judicial communication

1. In late November 2018, my chambers was contacted by the father, who sought communication between the judge in proceedings in City D and myself.  There followed a series of emails between myself and one of the judges designated for the United States to the International Hague Network of Judges.  There was a hearing in City D, at which the proceedings in America were “continued” to late January on the basis that the matter would be before this Court on 3 January 2019. 

2. I have directed that the record of direct judicial communications be distributed to the parties.

3. I am grateful to my colleagues in the United States for their prompt replies and co-operation.

4. I note that the parties have formally communicated their consent to direct judicial communication being undertaken.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 3 January 2019.

Associate: 

Date:  11 January 2019