B and H
[2008] FCWA 122
•21 OCTOBER 2008
[2008] FCWA 122
| JURISDICTION | : | FAMILY COURT OF WESTERN AUSTRALIA |
| ACT | : | FAMILY LAW ACT 1975 |
| LOCATION | : [REGIONAL CENTRE] | ||
| CITATION |
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| CORAM |
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| HEARD |
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| DELIVERED |
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| FILE NO/S |
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| BETWEEN |
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AND
[H]
Respondent/Father
Catchwords:
CHILDREN - With whom a child spends time - child's view
Legislation:
Family Law Act 1975 s 60CA, s 60CC, s 65DAA
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Mr S Jones |
| Respondent | : | Self Represented |
Solicitors:
| Applicant | : | Helen Marshall |
[2008] FCWA 122
| Respondent | : |
Case(s) referred to in judgment(s):
B and B
Family Law Reform Act 1995 (1997) FLC 92-755
Goode & Goode (2006) FLC 93-286
Marsden and Winch (No. 3) [2007] FamCA 1364
[2008] FCWA 122
1 [Ms B] and [Mr H] cannot agree how much time their daughter, [Ella], should
spend living with each of them. [Ms B] would prefer to continue the current arrangement, which involves [Ella] spending ten nights each fortnight with her and four nights each fortnight with [Mr H]. [Mr H] has for a long time wanted an equal shared care arrangement and now proposes a graduated increase to achieve that objective.
2 The Single Expert has reported that 10 year old [Ella] is adamant she does not want to change the existing arrangements.
Background
3 [Mr H] is 48 years of age and is a [lecturer]. [Ms B] is 46 years of age and is an office administrator. They both live in [a suburb of a regional centre].
4 [Mr H] and [Ms B] commenced living together in 1996. [Ms B]’s son from
a previous relationship, [Ben], also lived with them. [Ben], who is now about 20, still lives with [Ms B] (although it is anticipated he will be going to Europe for three months in 2009).
5 [Ella] was born in November 1997. [Mr H] and [Ms B] were married the
following February. They separated in September 2000, when [Ella] was not yet three years of age. [Mr H] has not had a significant relationship since he and [Ms B] separated. [Ms B] has since married [Mr B], a local businessman.
6 [Mr H] commenced proceedings concerning [Ella] in early 2001 and there has
been much litigation between them ever since. The current proceedings commenced in June 2007 when [Ms B] made an application for more specific orders concerning [Ella]. She hoped that greater specificity would reduce the acrimonious correspondence about the logistics relating to [Ella]’s time with her father. [Mr H] responded by making an application for equal shared care, which he has since amended to seek a graduated increase in contact until an equal time arrangement is reached.
7 During the course of the proceedings, the parties agreed to the appointment of
[Dr W] as a Single Expert to provide a report concerning the family. He interviewed the parties and [Ella] in December 2007 and his report was published in January 2008.
8 The matter proceeded to a two day hearing in [the regional centre] in July 2008. [Ms B] was represented by counsel and [Mr H] represented himself.
Credibility
9 [Mr H] and [Ms B] both presented as decent and law-abiding people. I was not
persuaded either of them told any deliberate untruths, but I consider their evidence was coloured by the unfavourable view each holds about the other and by their firm desire to obtain the orders they think will benefit [Ella].
[2008] FCWA 122
10 I gained the impression that [Mr H] was somewhat more inclined to embellish
his evidence than was [Ms B]. Cross-examination revealed significant discrepancies between what he had said (and sometimes what he had not said) in his affidavit and what he had recorded in the diary that he had to produce unexpectedly during the proceedings. I was also concerned by the way in which [Mr H] cross-examined [Ms B] about her affidavit sworn in November 2007. The selective way in which he quoted from the conversation between [Ms B] and [Ella] recited in paragraph 6 of that affidavit resulted in [Ms B]’s side of the discussion being taken out of context.
11 Although I generally had a slight preference for the version of events given by
[Ms B], her recollection of some dates and events was shown in cross-examination to be faulty. Often, however, the discrepancy did nothing to advance her case and did not reflect on her credit overall.
12 I found [Ms B]’s husband, [Mr B], to be a fairly sensible person who gave his
evidence and expressed his opinions in a temperate fashion. Whilst I have no doubt that he has some degree of antipathy towards [Mr H], I gained the impression that his evidence about matters involving [Mr H] was not as clouded as that given by [Ms B].
13 The only other witness to give oral evidence, apart from the Single Expert, was
[Ms M], who is a long-time friend of [Mr H]. [Ms M] has a poor opinion of [Ms B], based mainly it seems on what [Mr H] has told her and on her reading of correspondence passing between [Mr H] and [Ms B]’s solicitor. She presented as a fairly opinionated person. Nevertheless, I considered she did her best to tell the truth, albeit her opinions were strongly clouded by her alliance with [Mr H] and her poor view of [Ms B].
14 [Dr W] was cross-examined by telephone from his office in Perth. Properly, no issues arose concerning his professional expertise, credibility or objectivity.
15 The only other witness was [Ms T], who swore a long affidavit strongly
supporting [Mr H]. Her affidavit contained a great deal of hearsay and opinion evidence. [Ms B]’s counsel initially indicated that [Ms T] was required for cross-examination, but I was advised she was no longer required after [Mr H] was cross-examined.
Orders sought by mother
16 The orders sought by [Ms B] were set out in her Papers for the Judge. She
proposed that she have joint parental responsibility with [Mr H]. She also proposed that during school terms [Mr H] spend time with [Ella] each alternate weekend from after school on Thursday until the commencement of school on Monday. During closing addresses, I was advised that [Ms B] would have no objection to the weekends commencing on Fridays rather than Thursdays, which was [Mr H]’s preference. Although counsel did not say so, I presume that if the visits commenced on Friday afternoon, [Ms B] would want them to conclude prior to school on Tuesday.
17 [Ms B] proposed an equal sharing of time during school holidays. Her proposals
for Christmas holidays involved an arrangement whereby times for handover would be set with some precision, but arranged in such a way that [Ella] would never be away
[2008] FCWA 122
from either parent for more than 14 days at a time. [Ms B] also proposed specific
times for special occasions.18 In addition, [Ms B] proposed that [Mr H]’s telephone communication with
[Ella] take place on [Ms B]’s landline, rather than on [Ella]’s mobile telephone. [Ms B]originally proposed that the calls occur on three days each week between 4.00 pm and 5.00 pm; however, she said she would not object to the calls being somewhat later, provided they were not later than 7.00 pm.
19 [Ms B] also sought an order that [Ella] be enrolled at [a college in the regional centre] in Year 7 in 2009.
Orders sought by father
20 The orders sought by [Mr H] were set out in Annexure “U” to his trial affidavit
(with some amendments made during the trial). Like [Ms B], he proposed equal shared parental responsibility. He proposed that the current time sharing arrangements be varied so that he would have [Ella] from after school on alternate Fridays until the end of school the following Wednesday – with this time increasing by an additional day each fortnight in 2009. He then proposed that there be a week-and-week about arrangement commencing in 2010.
21 [Mr H] also sought an equal sharing of school holidays, but was opposed to the
proposition that [Ella] should not spend more than two weeks away from either parent.
22 His proposed program for contact on special occasions differed from [Ms B]’s
proposals in that he suggested that [Ella] stay overnight for many of the special
occasions.23 [Mr H] also wants to be able to contact [Ella] on her mobile telephone or
[Ms B]’s landline between 7.00 pm and 8.00 pm on three days each week and for
reasonable SMS contact to be permitted at all other times.24 [Mr H] sought an order that [Ella] remain at [the local] Primary School until
a suitable high school was “negotiated”. He indicated during the hearing that whilst he was opposed to [Ella] attending [the college] in 2009, he would agree she commence there in 2010.
25 [Mr H] proposed that the orders be reviewed by the parents and [Ella] in June
2010 and that both parties have liberty to relist the proceedings. He also sought a variety of other orders which were not the subject of much (if any) evidence or submission at trial.
Applicable law
26 Section 60CA of the Family Law Act 1975 (“the Act”) makes clear that I am required to treat [Ella]’s best interests as the paramount consideration. In doing so, I will be guided by the relevant objects of the Act and the principles underlying those objects. The stated objects are to ensure that the best interests of children are met by:
[2008] FCWA 122
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
27 These objects are somewhat more comprehensive than the previously stated
object of the relevant part of the Act. Prior to the 2006 amendments, the stated object
was:“…to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”
28 The first of the four “new” objects of the Act set out above is far from novel. It
echoes two of the guiding principles which were previously to be found in the Act,
namely:
“(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and (b) children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development…”
29 The Full Court of the Family Court of Australia has previously considered the
impact of statutory amendments dealing with the stated objects of the law relating to children of a marriage. In B and B: Family Law Reform Act 1995 (1997) FLC 92-755 at [9.2], the Full Court said, in speaking of the 1995 amendments to the Act:
“It is clear that many of the aims of the Reform Act are long-term, educative and normative. That is, they are directed towards changing the ethos where parents separate in the ways in which they think and act in their role as parents, in their approaches to resolving disputes about their children, in the ways in which lawyers act for the parents (and the children), in the approach by the Court in the adjudication of disputes and, more broadly, in the attitudes of society generally.”
| 30 | Notwithstanding the changes of emphasis and terminology made by the 1995 amendments, the Full Court was in no doubt about the core task of judges entrusted |
[2008] FCWA 122
with responsibility for making decisions about the welfare of children. The Full Court
said at [9.51] to [9.60] (my emphasis added):“In our view, the essential inquiry is clear. The best interests of the particular children in the particular circumstances of that case remain the paramount consideration. A court which is determining issues under Part VII of the type to which we have referred, starts from that essential premise and it remains the final determinant.
The legislature has also made it clear that in that process the Court is required to have regard to both the provisions contained in s 68F(2) and those contained in s 60B.
The wording of s 68F(2) makes that clear — the Court "must consider" the various matters set out in (a)-(l) of that sub-section. That sub-section sets out a list of matters which the Court is required to consider to the extent that they are relevant to the particular case. The weight which is attached to any one consideration will depend upon the circumstances of the individual case and is a discretionary exercise by the trial Judge. The list is similar to the list contained in previous legislation but with the additions previously referred to. The list is not intended to be exhaustive. That is made clear by par (1) “any other fact or circumstance that the court thinks is relevant”. This simply underlines the circumstance that the facts in individual cases may vary almost infinitely, that the inquiry is a positive one tailored to the best interests of the particular children and not children in general, and that the Court is required to take into account all factors which it perceives to be of importance in determining that issue.
Section 60B is important in this exercise as it represents a deliberate statement by the legislature of the object and principles which the Court is to apply in proceedings under Part VII. The section is subject to s 65E. Nor does it purport to define or limit the full scope of what is ordinarily encompassed by the concept of best interests. The object contained in sub-section (1) can be regarded as an optimum outcome but is unlikely to be of great value in the adjudication of individual cases. The principles contained in sub-section (2) are more specific but not exhaustive and their importance will vary from case to case. They provide guidance to the Court's consideration of the matters in s 68F(2) and to the overall requirement of s 65E. The matters in s 68F(2) are to be considered in the context of the matters in s 60B which are relevant in that case. But s 65E defines the essential issue.
Ultimately it is a question of applying in a commonsense way the individual sections so as to achieve the best interests of the children in the particular case. Although the Attorney-General submitted that the inter- relationship between the three sections was as much about procedure as it was about substantive law, we think it would be a mistake for this essential exercise to be clouded by procedural or semantic issues.
[2008] FCWA 122
The Court now, as previously, is required to determine what is in the best interests of the particular children (s 65E). It will direct attention to both of the other sections, but the weight to be attached to individual components of those sections may vary significantly from case to case.
This approach, which emphasises the essential importance of the exercise of the discretion in each case, accords with the approach otherwise adopted by courts to the discretionary provisions in the Family Law Act see for example the decision of the High Court in Mallett v Mallet (1984) FLC 91-507; (1984) 156 CLR 605 and ZP v PS (1994) FLC 92-480; (1994) 181 CLR 630. For many years in child related cases the legislature and the courts have consistently emphasised that the welfare or best interests of the particular child in the particular circumstances of that case is the determinant, and have eschewed the application of fixed or general rules as the solution. That continues to be the case; the Reform Act should not be understood as suggesting otherwise.
As a matter of proper practice and to ensure that this essential task is performed, a judge in the adjudication of such a case would be expected in the judgment to clearly identify s 65E as the paramount consideration, and then identify and go through each of the paragraphs in s 68F(2) which appear to be relevant and discuss their significance and weight, and perform the same task in relation to the matters in s 60B which appear relevant or which may guide that exercise. The trial Judge will then evaluate all the relevant issues in order to reach a conclusion which is in that child's best interests.
In this approach no question of a presumption or onus arises. The analysis by McLachlin J in Gordon v Goertz, supra, is compelling. The Act contemplates individual justice. Any question of presumption or onus has the potential to impair the inquiry as to what is in the best interests of the particular children. It may render the case more technical and adversarial, and may divert the inquiry from the facts relating to the children's best interests to legal issues relating to burdens of proof. The task is not “to be undertaken with a mind-set that defaults in favour of a pre-ordained outcome absent persuasion to the contrary”. See the judgment of Brennan J (as he then was) in Brown and Pederson, supra.
In cases where there are no countervailing factors the s 60B principles may be decisive, not only because they are contained in s 60B but because they accord with what is in the best interests of the particular children. Where there are no countervailing factors, the Court may normally be expected to conclude that it is in the best interests of the children to have as much contact with each parent as is practicable. However, to attempt to impose that approach in cases where the best interests of the children may not indicate that conclusion as appropriate is contrary to the legislation and contrary to the long established views of this and other courts which deal daily with the welfare or best interests of children.”
[2008] FCWA 122
31 It will be noted that the Full Court made many references in this citation to s 65E
of the Act, which was the provision making the best interests of the child the paramount consideration. Section 65E has now been repealed, but only for the purpose of advancing it to a position of earlier prominence in the Act. In my view, many of the remarks made by the Full Court in relation to the 1995 amendments hold true in relation to the 2006 amendments. In particular, it remains the case that the paramountcy provision defines the essential issue and the Act still contemplates individual justice.
32 The Full Court has said in Goode & Goode (2006) FLC 93-286 that the 2006 amendments evince a “legislative intent” in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children. However, the legislative intent is subject to many important qualifications. Fundamentally, it is subject to the need to protect children from harm, abuse and family violence. It is also dependent upon the arrangement being in the children’s best interests and reasonably practicable. The legislative intent is also tempered by s 60CC(4), which requires the Court to consider the extent to which each parent has fulfilled (or failed to fulfil) his or her responsibilities as a parent.
33 In enacting the 2006 amendments, Parliament has given legislative voice to what
was already a presumption that responsibility for decision making about children should ideally be shared between parents. The presumption does not apply if there are reasonable grounds to believe that either parent, or a person who lives with either parent, has engaged in child abuse or family violence (as defined by the Act). The presumption may also be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility.
34 If I make an order that the parties have equal shared parental responsibility,
I would then be obliged by s 65DAA to consider whether or not [Ella] spending equal time with each parent would be in her best interests and reasonably practicable. If such an outcome is found to be in her best interests and reasonably practicable I am required to consider making an order to provide for her to spend equal time with each parent. If for some reason I decide that such an order would not be in her best interests and/or not reasonably practicable, then I am required to consider whether or not [Ella] spending “substantial and significant time” with each parent would be in her best interests and reasonably practicable. If such an outcome is found to be in her best interests and reasonably practicable, I am required to consider making an order to provide for her to spend “substantial and significant time” with each parent.
35 By virtue of section 65DAA(3), [Ella]’s time with each parent would only be
“substantial and significant” if it included days that do not fall on weekends or holidays (as well as weekends and holidays). The time must also be such as to allow each parent to be involved in [Ella]’s “daily routine” and in occasions and events that are of “particular significance” to [Ella]. Finally, the time must also allow [Ella] to be involved in occasions and events that are of “special significance” to each parent.
36 As will be apparent, my overriding objective must be to make the orders most
likely to promote [Ella]’s best interests. The legislation itself specifies the matters I must take into account in determining what is in her best interests. Section 60CC(2)
[2008] FCWA 122
details what are called the “primary considerations” and s 60CC(3) details the
“additional considerations” to be taken into account.37 This dichotomy between “primary” and “additional” considerations was
introduced into the legislation in 2006. There has not yet been a great deal of guidance from the Full Court concerning the way in which respect is to be paid to the intention of Parliament in specifying two factors as being the “primary” considerations. However, the Full Court (Warnick & Thackray JJ, with whom Le Poer Trench J agreed) had this to say in Marsden and Winch (No. 3) [2007] FamCA 1364:
“The present case is not an appropriate vehicle in which to undertake a detailed analysis of the implications of the legislation prescribing certain matters as “primary” considerations. It is sufficient to say it is palpably clear that whilst the “primary” considerations should be accorded particular importance in determining what order will best promote the interests of the child, they cannot determine the outcome in every case. Not only must the “additional” considerations be taken into account, but the two “primary” considerations themselves may tend in different directions. That is to say, whilst there may be great benefit attached to a particular child having a meaningful relationship with both parents, that benefit may be outweighed by the need to protect that particular child from physical or psychological harm associated with maintaining such a relationship.”
38 It is within the legal framework described above that I will proceed to determine
this case.
[Ella]’s best interests – the primary considerations
39 I turn first to the primary considerations to be taken into account in determining which orders would be most likely to promote [Ella]’s best interests.
The benefit to the child of having a meaningful relationship with both of the child’s parents
40 [Mr H] and [Ms B] agree that it is very important for [Ella] to have a meaningful
relationship with both of them. I am satisfied she already has such a relationship and that she will continue to have such a relationship regardless of whichever orders I make.
The need to protect the child from physical or psychological harm from being
subjected to, or exposed to, abuse, neglect or family violence
41 There is no suggestion that either parent will cause any harm to [Ella].
Additional considerations
42 I turn next to consider those of the additional considerations that are relevant.
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Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
43 [Ella] was very concerned about expressing her opinions to [Dr W] since she
was aware of the conflict between her parents and her father’s strong desire to have an equal shared care arrangement. [Dr W] reported that at a number of times in their discussion:
“[Ella] gave indications of fear of her father finding out what she was saying to me, for fear of repercussions. She did not want to upset him and was worried that he may react negatively if she expressed a view contrary to those of what he was wanting. She did not express a similar view about her mother”.
44 Nevertheless, [Dr W] reported that [Ella] is “quite adamant” she wants the
current arrangements to continue. [Ms B]’s evidence, which I accept, also indicates that [Ella] has expressed to her a strong desire not to have an equal shared care arrangement.
45 When [Mr H] was asked how much clearer [Ella] had to be about her wishes, he
responded by saying she only had to tell HIM that she did not want any more time. His answer demonstrated a lack of insight into how [Ella] would feel telling her father this, knowing that he is so passionate about a shared care arrangement. [Mr H] himself acknowledged that he can be quite “loud”, especially when he is discussing matters about which he feels passionately. He presented in Court (and in the bitter correspondence that has gone on for years) as a somewhat domineering person. A child of the age and personality of [Ella] would clearly have great difficulty telling [Mr H] something he did not want to hear.
46 Although [Mr H] attempted to explain [Ella]’s wishes away as a product of the
influence of her mother and others in her household, I am satisfied the views [Ella] expressed to [Dr W] are her true wishes. I also consider they are based on more than the normal reluctance of children to change existing arrangements. [Dr W] concluded that [Ella] was not “feeling unduly influenced by her mother” and saw no evidence that her views were being “blatantly manipulated”.
47 [Dr W] accepted there may be other “unconscious” factors at work in [Ms B]’s
home which would have some impact on [Ella]’s wishes. I acknowledge this is likely to be the case. On the other hand, I am satisfied that [Mr H] has been exerting (at the very least) subtle pressure on [Ella] for her to spend “50:50 time” with him.
48 [Ella] is now nearly 11 years old. [Dr W] reported that she is “reasonably
assertive … and it was evident that she was used to getting her way a fair deal of the
time”. I am satisfied I should give fairly significant weight to [Ella]’s wishes.49 [Mr H] asserted that [Ella]’s views would have changed in the time since she saw [Dr W] in December 2007. I was not persuaded this was likely to be the case.
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The nature of the relationship of the child with –
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
50 I am satisfied [Ella] has a very good relationship with both of her parents. She
has, however, lived with her mother to a much greater extent than she has with her father. I accept [Dr W]'s assessment that [Ella] has a stronger sense of attachment to her mother and half-brother than she does with her father, which is not to suggest that she does not have a strong relationship with her father.
51 There has been much evidence of separation anxiety on the part of [Ella], both at
the time she is leaving [Ms B] to go to [Mr H] and on other occasions, including when she has been in [Mr H]’s care. The evidence tends to suggest that this can be attributed, at least in part, to the overly protective style of parenting provided by [Ms B]in [Ella]’s earlier years. This anxiety is now abating as [Ella] has matured.
52 The nature of the relationship between [Ms B] and [Ella] is now such that
[Ella] feels comfortable in criticising her mother in her presence, as she did on the occasion when she was in hospital (in the incident relating to the signing of documents). [Ella]’s relationship with her father is different in this respect. I am satisfied she does not feel comfortable in being negative about him whilst she is in his presence.
53 [Ella] has a very strong relationship with her half-brother [Ben]. She described [Ben] to [Dr W] as “one of my best friends”.
54 I am satisfied that [Ella] has a developing relationship with [Mr B] and that in
time they will form a good attachment. [Ms B] met [Mr B] in November 2005, but
they did not commence to live together until their marriage in July 2006.The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
55 I accept that on many occasions [Ms B] appears to have been very encouraging
of [Ella]’s relationship with [Mr H]. She has, however, been a somewhat nervous and very protective mother (self described as being a “real Mummy’s Mummy”) and on occasions has done things which could be interpreted as not encouraging the relationship. However, the fact is that [Ella] now has a very good relationship with her father.
56 I have some concerns in relation to [Mr H]’s ability to foster a good relationship
between [Ella] and [Ms B]. He is absolutely convinced that it is in [Ella]’s best interests for her to have a shared care arrangement. His actions for many years have been directed towards bringing about this result. I fear that [Mr H] considers his “right” to have equal time with [Ella] is of such importance that he would allow it to have some priority over ensuring that [Ella] maintains a strong relationship with [Ms B]. I suspect that if there were to be any deterioration in [Ella]’s relationship with her mother, [Mr H] would see this as appropriate payback for what he would regard as
[2008] FCWA 122
[Ms B]’s past poor behaviour toward him. Nevertheless, I accept [Dr W]’s evidence that when he was observing [Mr H] he “tended to express reasonably positive views … of [Ms B] and [Mr B] in [Ella]’s presence”.
The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from –
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
57 It is notoriously difficult to predict the future but I concur with the views
expressed by [Dr W] that there is likely to be a deleterious effect on [Ella] in the event
that an equal shared care arrangement was to be implemented.58 In expressing his opinion in his oral evidence, [Dr W] made reference to
research conducted by Dr Jennifer McIntosh about the impact on children of imposing shared care arrangements, especially in families where there is a high level of conflict. [Dr W] summarised Dr McIntosh’s research (which he cautioned relied on only a small sample), as suggesting that the imposing of a shared care arrangement could create “more distress and stress and problems rather than resolving problems”. [Dr W] said this research confirmed his own opinion that where “conflict is high and tension is high, equal shared care does not resolve issues or take away tension”. He said his preference in such matters would be to “lean towards a primary parent and a visiting parent” arrangement.
59 Both parties invited me to consider Dr McIntosh’s research but neither made any
considered submissions in relation to the manner in which the research should be taken into account. Whilst evidence based research is of immense importance in determining policy, by its nature it is usually indicative only of trends and cannot be utilised alone in determining appropriate outcomes in individual cases.
60 I am of the view that [Ella] would be less happy and content if she were to be
separated to any greater extent than at present from her mother and her half-brother. I am not satisfied this would be compensated for by any improvement in the relationship between [Ella] and her father as a result of spending more time with him. In fact, I am not satisfied that having one more day (or even three more days) per fortnight with her father would make any difference to [Ella]’s relationship with him.
The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
61 The parents live in close proximity and there are no issues arising under this
heading.
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The capacity of –
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child),
to provide for the needs of the child, including emotional and intellectual needs
62 Both parents are capable of providing for [Ella]’s physical and intellectual
needs.
63 There are aspects of the personality style of both [Mr H] and [Ms B] that may
impact on their ability to provide for [Ella]’s emotional needs. I note that both of them
come from family backgrounds in which there was some degree of dysfunction.64 I have already indicated [Mr H] presented in Court as a quite domineering
person. I note and accept [Dr W]’s assessment that there are some aspects of [Mr H]’s “personality make up where he appeared quite rigid and determined with his views”. [Dr W] considered that the history of handover might suggest there was a question mark over [Mr H]’s ability to recognise [Ella]’s emotional needs and separate them from his own; however, he felt there was no evidence of that problem on an ongoing basis. I was nevertheless not entirely satisfied that [Mr H] is able to recognise [Ella]’s emotional needs.
65 I was impressed by the fact that [Ms B] rarely telephones [Ella] when she is with
her father and does not insist on having her for Mother’s Day, her own birthday or [Ella]’s birthday if she is spending time with [Mr H]. This indicated to me an ability to place [Ella]’s needs ahead of her own. I nevertheless accept [Dr W]’s assessment that whilst [Ms B] is seemingly “a friendly and sociable woman who presents as calm and easygoing … there [are] some fairly strong underlying emotional aspects to her personality”. Notwithstanding this, I am satisfied that [Ms B] is more attuned to [Ella]’s emotional needs than [Mr H]. [Mr H]’s evidence indicated that he was blithely unaware, for example, of [Ella]’s ability to sense the tension that existed between her parents during the two or three days they spent huddled around her hospital bed.
66 I formed a good impression of [Ms B]’s husband, [Mr B]. He presented as being
calm and sensible. I consider that he would provide a good foil to the more
“emotional aspects” of [Ms B]’s personality.The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
67 The only issue of significance under this heading is that [Ella] is fast progressing
towards her teenage years and will no doubt develop even stronger opinions than she currently has on issues associated with her parents. In some years to come she will no doubt make up her own mind about the living arrangements that will suit her best.
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The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
68 I accept [Dr W]’s assessment that [Mr H] is a “very devoted father to [Ella]” and
that he is “an interactive father who gets in and does the activities with [Ella]”. These characteristics demonstrate that he has a good attitude to [Ella] and to the responsibilities of parenthood.
69 I consider that [Ms B] also has a good attitude to [Ella] and the responsibilities
of parenthood. I was impressed by the firm stand she proposes to take in relation to [Ella]’s education. She says that she proposes to enrol [Ella] [at the college] in 2009, even though she expects initial resistance from [Ella]. In the context of hotly contested litigation, it would no doubt have been very tempting for [Ms B] to take “the course of least resistance” on this issue. She has, however, made an assessment as a parent of what will be best for [Ella] and is satisfied that she can ensure [Ella] will make the transition to the new school without too much angst. While [Mr H] criticised [Ms B] in his closing address for making such a decision contrary to [Ella]’s preference, I felt it was to her credit. [Ella] is only in Year 6 and her mother is better placed than she is to map out the best course for her further education.
Any family violence involving the child or a member of the child’s family
70 Although [Mr H] has alleged that [Ms B] struck him, there was no suggestion this was of any relevance to the proceedings.
Any family violence order that applies to the child or a member of the child’s family, if —
(i) the order is a final order; or (ii) the making of the order was contested by a person 71 There was no restraining order in place at the time of trial, although [Mr H] had once sought such an order against [Ms B].
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
72 [Dr W] expressed the view in his oral evidence that the possibility of further
Court proceedings would only be removed in the event that “Dad gets what he wants and what he sees as fair”. Whilst making an order building up to an equal shared care arrangement is, in my view, the order most likely to lead to less proceedings in the future, I am not satisfied that this should be a factor of any importance.
Section 60CC(4) factors
73 The Act requires me to consider a variety of other matters set out in s 60CC(4).
The provision is lengthy and I do not intend to repeat it here. I have considered the
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matters set out in the subsection and have already alluded to those matters I consider
of significance.
Parental responsibility
74 Both parents seek an order for equal shared parental responsibility. Whilst
I have concerns about their ability to reach agreements in relation to matters concerning [Ella], I am satisfied that it is in [Ella]’s best interests for me to accede to her parents’ joint request in this regard. Once the decision has been made in relation to [Ella]’s secondary education, there will hopefully not be too many major long term issues concerning [Ella] that will require consideration by her parents.
Time sharing
75 Having indicated my intention to make an order for equal shared parental
responsibility, I am required to consider whether or not an equal shared care arrangement for [Ella] would be in her best interests and reasonably practicable. In this regard, I note that [Mr H] is now not seeking the immediate commencement of a shared care arrangement but rather a graduated increase in his time with [Ella] until that objective has been achieved.
76 Whilst an equal shared care arrangement would be “reasonably practicable” I am
not satisfied that it would be in [Ella]’s best interests for reasons which will be
apparent from the findings I have made above.77 I am next required to determine whether or not it would be in [Ella]’s best
interests and reasonably practicable for both parents to have “substantial and significant time” with her. I am satisfied that it is not only “reasonably practicable” but also in [Ella]’s best interests for her to spend substantial and significant time with her father. The orders sought by both parties would achieve that objective. The real issue is whether there should be any change to the current time sharing arrangement, by which [Ella] spends four nights each fortnight with her father.
78 At paragraph 60 of his report, [Dr W] said that he wanted to stress that “the
current arrangement appears to be working well for [Ella]” and that “psychologically she appears quite well adjusted with the arrangement”. He went on to say in paragraph 63 that “in my opinion the best interests for [Ella] would be not to change the current residency”. Having noted that [Ella] would be likely to make up her own mind in several years’ time and that the arrangements for [Ella] should be reviewed before the start of Year 8, [Dr W] said at paragraph 66:
“Given the current arrangements, [Ella]’s expressed views and the suchlike, I would perhaps tweak the arrangement to be a nine day/five day split, but I would not proceed with trying to force [Ella] into a week about arrangement as she has, to my mind, a fairly strong view of not wanting to make the change at this time. If a change is imposed she is likely to resent her parents for doing this.”
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79 With respect to [Dr W], it is difficult to see the basis upon which he moved from
the comments made at paragraphs 60 and 63 of his report to the suggestion that he might “perhaps tweak the arrangements” by increasing the amount of time [Ella] is currently spending with her father.
80 When [Dr W] was cross-examined about this suggestion he confirmed that [Ella] did not want to change the current arrangements but he felt that:
“you could get away with a little change without repercussions from her view – there is a little bit you could do but do too much and it would have repercussions – you could shift a little but you would not want to shift a lot”.
81 It is apparent from the way in which [Dr W] expressed his views, both in his
report and in cross-examination, that he was not making a firm recommendation that [Ella] should spend more time with her father. His comment needs to be considered, in my view, in light of the strong push by [Mr H] for a precisely shared care arrangements and [Dr W]’s strong view that this would not be appropriate at this time for [Ella].
82 I am not satisfied that [Ella]’s best interests would be promoted by increasing the
time she is currently spending with her father. In my view, [Ella]’s “adamant” view that she does not wish to change the arrangements should be respected. I also consider independently of her wishes that such an arrangement would be best for her.
Time for handover
83 As already noted, the current arrangement involves [Ella] being collected from
school each alternate Thursday afternoon and being dropped at school on Monday morning. In the event that the Monday is a public holiday, the handover still occurs, but not at school. [Mr H] preferred that the visits commence on Friday rather than Thursday, which as he said “allows completion of one full week at school” and has the added advantage that the return handover would take place on Tuesday morning rather than Monday. This would mean that [Ella] can enjoy the full long weekend with [Mr H] and the handover can occur at school. [Ms B] has no objection to this proposed change and I consider it is in [Ella]’s best interests.
Specificity in orders
84 [Ms B] acknowledged that the orders she was seeking were “convoluted” but she hoped they would assist avoid future disputes and misunderstandings.
85 I am satisfied it would be in [Ella]’s best interests for the current orders to be
amended so as to provide a greater specificity and thus hopefully help the parties avoid the debilitating correspondence that has been carried on between them for so many years. There were, for example, 25 pieces of correspondence between [Ms B]’s solicitors and [Mr H] just in relation to contact at Christmas in 2005.
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86 [Dr W] expressed the view that [Ella] was now of an age where she should be
able to move back and forward between the homes of her parents when she wants. [Dr W] stressed that this was “not for the night-time contact but during the day” and he went on to say that if [Ella] “wanted to go to her Mum or Dad on the weekend that should be allowed to happen”. [Mr H] sought an order in accordance with this recommendation.
87 I accept that ideally, given [Ella]’s age and the proximity of her parents’ homes,
she should have a degree of flexibility in visiting her parents. No doubt, as she grows older, this may well happen, but I am not persuaded that orders should be made expressly permitting this to occur. [Ella] is concerned about her father feeling “lonely” and I consider there is a prospect of her being placed under overt or subtle pressure by one or other of her parents to spend time with them in circumstances where she may not really want to do so.
88 Furthermore, an arrangement which provides certainty about where [Ella] is
meant to be at any one time is likely to obviate the necessity for communication between the parents. Their past communications have been time consuming and expensive and had a deleterious impact on their ability to work cooperatively in providing the best upbringing for [Ella].
Christmas holiday contact
89 I turn now to [Ms B]’s proposal that Christmas holiday contact should be
exercised in such a way that [Ella] is not away from either parent for more than two
weeks at a time.90 When [Ella] was interviewed by [Dr W] in December 2007, she had recently
been away for three weeks with her father and was about to have a similar period of
time with her mother. [Dr W] recorded the following in his report:
“71. [Ella] expressed some concern about three week blocks in the school holidays. I had the opportunity to see her after three weeks with her father. Because she had travelled interstate and met a cousin she had not found the situation as overly long or distressing. She had actually enjoyed the trip. Therefore three week blocks have proven to be workable, but given [Ella]’s nature I would suspect that it would be best to keep the blocks shorter, e.g. two weeks, unless there were plans for her to go away.”
91 Although [Ella] is approaching her teenage years, she is a sensitive child and has
expressed some concern to [Dr W] about spending as long as three weeks away from her mother. On the other hand, when she had the opportunity to travel interstate and visit family with her father for three weeks at the end of 2007, she enjoyed the opportunity.
92 I agree with [Dr W] that it may be best for [Ella]’s Christmas holiday contact
with her father to be taken in blocks of time of two weeks unless [Mr H] has plans to take her away from [the town] for longer than two weeks. Given that [Mr H] is [a lecturer] and given that both parents live in close proximity, there does not seem to
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me to be any disadvantage for [Ella] (or either of her parents) if her Christmas school
holidays are divided into two or more segments.
Special days
93 The essential difference between the proposals for contact on “special” days was
that [Ms B] was proposing a few hours on each occasion, whereas [Mr H] was
proposing that the contact extend overnight.94 [Mr H] submitted that his proposal was to be preferred because it would allow
more handovers to take place at school rather than the parents having to meet for the handover. I accept that there is validity in [Mr H]’s reasons and the orders I propose to make will reflect this. The orders I will make are not precisely what [Mr H] sought but are those that I consider are most appropriate for [Ella] and both her parents. It will be a matter within [Ms B]’s discretion whether she takes up the opportunity to have [Ella] on all of the special days mentioned in the proposed orders.
Schooling
95 [Ella] is currently attending [the local] Primary School, where she has been
enrolled since Year 1. She hopes to be the Year 7 champion girl runner next year and to assume leadership roles within the school and would therefore like to stay on there to complete her primary education.
96 [Ms B] has been making enquiries about [Ella]’s secondary education. She
believes that ideally [Ella] would attend [the college] from Year 8. She has been advised, however, that there are no places available for Year 8 entry at [the college] and the only way of ensuring her entry is by commencing there in Year 7. This is a common scenario and notwithstanding [Mr H]’s scepticism about this information, I am satisfied it is accurate. In this regard, I note the information in the prospectus attached to [Ms B]’s affidavit about the way in which [the college] runs a Middle School program that commences in Year 7.
97 [Mr H] is anxious for [Ella] to remain at [the local school] for the completion of
her primary education. He suggests that if there is not a place available at [the college] for the start of Year 8, [Ella] could commence her secondary education at [the local] High School (which is the other alternative) and transfer to [the college] at some later stage if a place became available. I did not think that this suggestion was very well thought through and I did not consider it would be in [Ella]’s best interests.
98 I consider that [Ms B]’s proposal is in [Ella]’s best interests. I am satisfied she
would not be proposing this option were she not to be of the view that she can assist
[Ella] to make the transition successfully.
Telephone communication
99 The consent orders made in July 2004 provided for [Ms B] to ensure that
[Ella] telephoned [Mr H] each Monday evening and to leave a message if he was not available with [Mr H] being at liberty to return to the call later. In addition, the orders
[2008] FCWA 122
provided for [Mr H] to telephone [Ella] up to three times each week. The orders went on to provide that “on occasion” [Mr H] could have additional time with [Ella] which was to be arranged by him telephoning her in the morning before school to see if she was available for an outing in the afternoon.
100 The dispute between the parents now relates to whether or not [Mr H] can
continue to communicate with [Ella] by mobile telephone, as he has done for some years or whether all communication should be on the landline in [Ms B]’s home. The other dispute relates to the time at which telephone contact can take place.
101 [Ms B]’s principal concern was what she regarded as the excessive amount of
SMS messages sent by [Mr H] to [Ella] and the fact that these often interrupted the family’s meal time, with [Ella] feeling an obligation to respond quickly to her father.
102 There was no firm evidence to corroborate the suggestion that [Mr H] had
communicated with [Ella] to an excessive extent but I can appreciate [Ms B]’s concern about telephone calls and SMS messages being received during the family dinner time, which I was informed normally starts around 6.00 pm. I can also understand why [Ms B] would want the telephone calls and messages to end by not later than 7.00 pm.
103 I do not propose to restrict [Mr H]’s communication with [Ella] to the landline
number. He provides [Ella] with the mobile and by this means can contact her whether she is at home or not and there is no necessity for him then to speak with anybody other than [Ella]. Given that he sees [Ella] for four days every fortnight and is able to telephone her on three different occasions every week, I do not consider it necessary for [Mr H] to be able to contact [Ella] by telephone calls or SMS messages outside the times allocated for such contact. Given that dinner time in [Ms B]’s home is from 6.00 pm I consider that the telephone/SMS communications can take place between 4.00 pm and 6.00 pm or between 6.45 pm and 7.00 pm on the three days each week proposed.
Injunction regarding motorcycle
104 [Ms B] sought an injunction restraining [Mr H] from allowing [Ella] to travel as
a pillion passenger on any motorcycle. She provided no evidence in support of that application in her affidavit but was given permission at trial to lead oral evidence. [Ms B] said that [Mr H] had owned a motorcycle for as long as she had known him and she was concerned that he allowed [Ella] to travel on the back of the bike with “just her little arms hanging on for safety”. She was unaware of how often [Mr H] had travelled with [Ella] on the back of his motorcycle after he had became aware of her concerns about her travelling in this fashion.
105 [Mr H] is opposed to the injunction sought by [Ms B]. He said that the
motorcycle was used only as a “reserve form of transportation for when his motor vehicle would not start”. He said that in the period of separation she had not been on the back of the motorcycle on more than eight or ten occasions. It seemed that [Mr H] wanted only to retain the option of using the motorcycle if his car did not work on some occasion in the future.
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106 I have considerable sympathy for [Ms B]’s concerns in relation to
[Ella] travelling on the back of a motorcycle. In my view it is a far more dangerous method of travel than by motor vehicle; however, I recognise that if there are occasions when [Mr H]’s vehicle is not working, it will be necessary for him to transport [Ella] by some other means.
107 I therefore intend to make orders that would permit [Mr H] to transport [Ella] by motorcycle, but only in circumstances where his motor vehicle is not operational.
Review of arrangements
108 [Mr H] proposes that there be a review of the contact arrangements in June 2010. [Dr W] expressed the opinion that the arrangements should be reviewed in the Christmas holidays prior to [Ella] starting Year 8 (i.e. at the end of 2009). In his report [Dr W] noted that “with [Ella]’s personality, in several years time she will be strongly expressing views and it will not matter what Court Orders say, as I would suspect that [Ella] would do things her way”. In cross-examination, [Dr W] expressed the view that making an order for a review at a nominated date might “take the pressure off [Ella]” for a couple of years, although he also expressed the view that [Mr H] was likely to keep raising the issue with [Ella] “with or without orders”.
109 I am not satisfied it is appropriate to determine now that there will be an
automatic review of the arrangements in the future. Time has a habit of sorting out such matters, especially when children are approaching their teenage years. I will, however, give [Mr H] permission to make an application for an order for a “review” of the arrangements in June 2010. Although I would not wish to pre-judge the issues that might then arise, it would seem to me that there would only be a need for a review in the event that [Ella] was expressing strong concerns about the continuation of the current arrangements.
Proposed Orders
110 Subject to hearing from the parties about the form of orders, I propose making
the orders set out below. In a few instances orders have been made without specific reasons being given. I have made those orders either because they were not contested or because I consider they will reduce disputation and are in [Ella]’s best interests.
| Orders | |
| 1 | All previous parenting orders be discharged. |
| 2 | That the father, [MR H], and the mother, [MS B], have equal shared parental responsibility for the child of the marriage, [ELLA], born [in] November 1997. |
| 3 | That the father spend time with [Ella] as follows: |
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(a) From after school on Friday until the commencement of school on Tuesday on each alternate weekend during school terms, with the first weekend to commence on the first Friday of each school term; and (b) During each of the mid-year school holiday periods from the conclusion of school on the last day of school until 5.00 pm eight days later (thus if school finishes on a Friday, the handover will occur on the following Saturday). 4 In the event that [Ella] is too unwell to attend school on the Tuesday following the conclusion of alternate weekend visits, the father shall return her to the mother’s home at 9.00 am having first given the mother notice by telephone of his intention in that regard.
5 The father’s time with [Ella] shall be suspended on the weekend of Mother’s Day from 10.00 am on Mother’s Day until the commencement of school on the following Tuesday.
6 [Ella] shall spend time with the mother and father during each Christmas school holiday period as follows:
(a) In 2008 and each alternate year thereafter: (i) With the mother commencing from after school on the last day of school until 5.00 pm on the day 14 days after the last day of school; and
(ii) With the mother commencing from 5.00 pm on the day 28 days after the last day of school until 5.00 pm 10 days later; and
(iii) With the father at all other times.
(b) In 2009 and each alternate year thereafter:
(i) With the father commencing from after school on the last day of school until 5.00 pm on the day 14 days after the last day of school; and (ii) With the father commencing from 5.00 pm on the day 28 days after the last day of school until 5.00 pm 10 days later; and (iii) With the mother at all other times. 7 In addition to the times provided for in paragraph 3 of these orders [Ella] shall spend time with the father:
(a)
On her birthday from after school until 6.00 pm (if her birthday falls on a school day) or from 3.00 pm on her birthday to the commencement of the next day of school (if her birthday falls on a non school day);
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(b) On the father’s birthday from after school until the commencement of the next day of school (if the birthday falls on a school day) or from 10.00 am on the birthday until 9.00 am (or the commencement of school) on the following day (if the birthday falls on a non school day); and (c) From 10.00 am on Father’s Day until the commencement of school the following day. 8 Unless otherwise specified in these orders, the handover shall be as follows:
(a) At the commencement of any time with the father, the mother shall cause [Ella] to be delivered to the father’s residence; and (b) At the conclusion of any time with the father, the father shall cause [Ella] to be returned to the mother’s residence. 9 The father be at liberty to telephone or SMS [Ella] on her mobile telephone or on the mother’s landline between 4.00 pm and 6.00 pm or 6.45 pm to 7.00 pm on each Monday, Wednesday and Friday.
10 Both the mother and the father be at liberty to telephone [Ella] on Christmas Day each year between 9.00 am and 10.00 am.
11 The mother and the father provide to each other copies of any newsletters, certificates, test results, reports or the like in relation to [Ella] as soon as practicable after they are received by each of them.
12 The mother and the father be restrained and an injunction be granted restraining each of them from denigrating the other or the other’s family or partner in the presence of [Ella].
13 The mother be at liberty to enrol [Ella] at [the college] (“the school”) for commencement at that school in year 7 and advise the father as soon as practicable of the enrolment.
14 The mother authorise the school to provide any information in relation to [Ella]’s progress to the father at his request and that the mother provide to the father, as soon as practicable after receipt, copies of all of [Ella]’s progress reports, awards, certificates and the like.
15 The mother and the father advise the other as soon as practicable of any prescription medication taken by [Ella] and of any medical professional attended on by [Ella] during their care of her.
16 The father be restrained and an injunction be granted restraining him from allowing [Ella] to travel as a pillion passenger on any motorcycle unless the father’s motor vehicle is not operational at the time, in which case the father be at liberty to transport [Ella] as a pillion passenger for any necessary travel during the period in which his motor vehicle is not operational.
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17 The father and the mother be restrained and an injunction be granted restraining them from attending at any medical or dental appointment arranged by either parent during the time [Ella] spends with the other parent, without invitation from the parent with whom [Ella] is spending time.
18 The mother and the father shall give the other seven (7) days’ written notice of their intention to travel with [Ella] more than 500 km from [the regional centre] and shall provide an itinerary with that notice.
19 The mother and the father be at liberty to attend school functions to which parents are ordinarily invited.
20 The father and the mother be at liberty to apply for a variation of the Christmas school holiday time sharing arrangements if they wish to take [Ella] away from [the regional centre] during the school holidays for a period of more than 14 days (such application may be made by a Form 2 application with supporting affidavit).
21 The father and the mother be at liberty to apply for a review of the time sharing arrangements for [Ella] in June 2010.
22 The application and response otherwise be dismissed.
I certify that the preceding [110] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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