Banks and Anor and Loffler

[2015] FamCA 726

FAMILY COURT OF AUSTRALIA

BANKS AND ANOR & LOFFLER [2015] FamCA 726

FAMILY LAW – CHILDREN – where the father seeks orders that the chid spend time with him unsupervised – where the mother is intractably opposed to the child spending time with the father or paternal grandmother – where the father has been the subject of criminal proceedings and a nolle prosequi was entered in respect of the charge – where the mother opines that the father caused the child trauma in an exercise of sexual assault – where there is nothing before the court that would support the mother’s contention – where it is ordered that the father spend supervised time with the child – where pursuant to s 62G(2) of the Family Law Act 1975 it is ordered that the parties and the child attend upon a family consultant for the purposes of the preparation of a family report.

Family Law Act 1975 (Cth) s 60CC, 62G(2), 69ZW.

Goode & Goode (2006) FLC 93-286
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clarke (2009) FLC 93-405

FIRST APPLICANT:

SECOND APPLICANT:

Mr Banks

Ms F

RESPONDENT: Ms Loffler

INDEPENDENT CHILDREN’S LAWYER: Hume Taylor and Co

FILE NUMBER: ADC 2014 of 2014

DATE DELIVERED: 27 August 2015

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 27 August 2015

REPRESENTATION

COUNSEL FOR THE FIRST APPLICANT: Ms Lewis

SOLICITOR FOR THE APPLICANT: D’Angelo Kavanagh

COUNSEL FOR THE SECOND APPLICANT:    Mr Anderson

SOLICITOR FOR THE SECOND APPLICANT: Ms E

COUNSEL FOR THE RESPONDENT: Ms E

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr B

Mr Bowler

Hume Taylor & Co

Orders

1. Further consideration of the Amended Application in a Case is adjourned to 13 November 2015 at 3.15pm.

2. During the period of the adjournment the father and at his election the paternal grandmother do forthwith spend time with the child B born … 2011 at the Suburb D Children’s Contact Centre on the following occasions for periods of not greater than two (2) hours duration:-

   (a)Saturday 19 September 2015 commencing 10.30am;

   (b)Sunday 20 September 2015 commencing 2.00pm

   and thereafter for four weekly sessions at such times and on such dates as may be determined by the Director of the centre.

(c)That pursuant to s 62G (2) of the Act, the parties and the child B attend upon and at the direction of a family consultant nominated and appointed by the Director of Child Dispute Services of the Adelaide Registry for the purposes of the preparation of a family report as to the interim arrangements that the child the child shall spend time with the father and the paternal grandmother with such report not to be commenced before 21 October 2015 but to be completed and released by 4pm on 11 November 2015.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2014 of 2014

Mr Banks
First Applicant

AND

Ms F
Second Applicant

AND

Ms Loffler
Respondent

AND

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. The proceedings were commenced by Initiating Application filed 6 June 2014.  The applicant is Mr Banks, who is the father of the infant child B born in 2013 (“the child”).  The second applicant is the paternal grandmother Ms F. Ms Loffler is the mother.  The contest, at least in respect of the matters before me today, involves parenting issues.  It is fair to say that the parties are in high conflict and the matter has now been before the court in excess of 12 months.  It is likely that the parties will not resolve their differences and that ultimately the court will have to determine final orders.

2. In addition to the child B, the parties each have children by other relationships.  The father has a daughter who resides in a different state.  The mother has three older children, one of whom is C aged 13 years.  The parties commenced cohabitation in or about 2010 and it appears that some, if not all of the mother’s children resided with the family.  The parties separated on 17 March 2014.  The date of separation is marked by the service on the father of an interim intervention order.  It is common ground that for various reasons the father has not spent any time with the child since the date of separation.

3. It is also the case that the paternal grandmother has also not spent time with the child.  The father and the paternal grandmother seek that they have an ongoing and meaningful relationship with the child.  Whilst there is some uncertainty as to the precision of the mother’s position, both as to substantive and interim orders, I think it is reasonable from the submissions made by counsel for the mother that she is intractably opposed to the child spending any significant, substantial or even meaningful time with the father or the paternal grandmother.

4. The parties are potentially in dispute as to the background history.  The father and the paternal grandmother would assert that prior to the date of separation the father was in a loving, close and caring relationship with the child and that it was not uncommon for the father to have the care of the child at various times in the absence of the mother.  He would have the court understand that prior to the date of separation the relationship between he and the child was a close one. 

5. The mother’s position is not so benign in terms of those assertions by the father but rather she says that she was in fact the primary carer of the child and that apart from the gloss that the father would put on the relationship that he had with the child, there were worrying aspects in respect of the father’s care of the child.  The court history that is relevant to this application is that on 24 March 2015 the father’s further application seeking supervised contact with the child was refused.

6. On that occasion Dawe J considered the application and response of the parties and was persuaded that it would be inappropriate for the court to recommence contact in circumstances where the father was facing criminal charges involving sexual assault of the mother’s child C.  By that stage, there was at least a year that the father had not spent time with the child.  I do not have the advantage of hearing the submissions made, but I am advised today by the Independent Children’s Lawyer (“ICL")that the issue under consideration by her Honour was a resumption of time between the child and the father but regulated and under the supervision of the Suburb D Children’s Contact Centre, or at least a contact centre in any event.

7. I think I am entitled to accept the submissions of the ICL that it was his position, notwithstanding certain concerns arising out of the criminal proceedings in respect of C, that on the basis of supervision being undertaken by a children’s contact centre, the ICL was prepared to support the resumption of time.  That submission was made by Mr Bowler, I think, to assist me in understanding that matters today have not necessarily advanced significantly from those that were the case before her Honour in March of 2015, save and except that there has been a change in the status of the criminal proceedings that the father was facing.

8. The trial of the charge in respect of C was listed in the Central District Criminal Court for 14 July 2015.  On 17 July a nolle prosequi was entered in respect of that charge.  That, of course, is not the same as an acquittal and it is not to suggest that even if there was an acquittal, the issue would not have any focus in the proceedings in this court.  But the very fact that the criminal proceedings were resolved in the way that they were then clearly left open the pathway in terms of the concerns that her Honour had on 24 March 2015 to return to this court and seek orders.

9. It is following the resolution of the criminal proceedings involving the child C, the earlier resolution of charges of assault against the mother and the retention of a restraining order or intervention order that in effect clears away the roadblock as the father would see it, to the matter coming back before the Court to seek orders for a resumption of time.  That position was reflected in the Application in a Case of 17 March 2015 where the father sought certain documents from the court in order to assist in the resolution of those criminal proceedings.

10. It is the Amended Application in a Case of 3 August 2015 that sets out the issues for determination today.  The father seeks orders in the alternative, the first is that the child spend time with him unsupervised but on a relatively limited basis.  In that regard Ms Lewis highlights that it is not intended by the father in the orders he seeks, certainly at this stage, to seek time with the child on an overnight basis.  The alternative is that there be time spent between the father and the child at a children’s contact centre but, in addition, that there be some other intervening time.

11. The advantage presumably is that that would provide a level of structure to the resumption of time.  The paternal grandmother also appears today and is represented.  The observation is that there is no application currently before the court and no affidavit in support.  There is a position that would be one of support for the application of the father and a desire, at least to the extent that the father would promote it, that the paternal grandmother could be involved in whatever orders the court makes. 

12. It is also a distinct possibility, but perhaps a determination for another day, that if indeed in a general sense there is a resumption of time between the father and the child, that it may be the case that the paternal grandmother is disinclined to continue with her application in terms of seeking specific orders for herself but simply would remain as one of support for the position of the father.  The application in the case is opposed by the mother and her response is to be found in a document filed at 10 August 2015.  Putting aside order 1, which appears to do no more than simply reflect the current state of orders namely, that the child lives with the mother and that she has responsibility for his day to day care, welfare and development, the other order sought is that the court makes orders as may be deemed necessary in the circumstances. 

13. The response is supported by an affidavit of the mother filed 10 August 2015.  The mother does not appear today and is represented by counsel.  The mother does not have the advantage of her solicitor being present in court.  At the commencement of these proceedings I made certain remarks that it was entirely inappropriate for an instructing solicitor to place counsel in the invidious position where in order for the counsel to properly conduct the proceedings a circumstance may well arise where counsel is embarrassed because of an inability to obtain instructions. 

14. The court has been assisted significantly by the good grace of the mother’s counsel in her attendance today in circumstances where she would have been entitled to respectfully and properly withdraw from the proceedings on the basis that her instructor has not afforded her the courtesy that her position as a barrister practicing in this court would require.  The court is assisted by Ms E and is grateful that she has determined notwithstanding the difficult position that she has been placed in order to try and assist me in the discharge of my obligation under Part VII of the Act.  A difficulty however has arisen in that it is not immediately apparent from the response document nor indeed what I consider to be a wholly inadequate affidavit in support of that response as to what actually is the position of the mother in relation to the orders. 

15. I think from the submissions made by Ms E and what I can glean from the tenor of the affidavit of the mother filed 10 August 2015 that, far from the mother being content for the court to make such orders as it may consider appropriate in the circumstance, the position is that the mother seeks that there be no order made that would see the child spending time with the father and/or the paternal grandmother.  That is that the amended application in the case be dismissed.  I repeat, the affidavit in support of the response is a wholly inadequate document.  It is not responsive to the matters raised and it regurgitates evidence and matters raised in earlier affidavit materials that have been the subject of judicial consideration, determination and resolution. 

16. It is unhelpful and it is particularly so in circumstances where this is not necessarily only an issue of a party who seeks to oppose orders sought by the other party.  But this is against the backdrop of a case where, if the mother is to be ultimately believed and accepted, the father has engaged in serious sexual assault and misconduct with the child C, notwithstanding that those proceedings have been dealt with by the entering of a nolle prosequi.  The inadequacy of the information before the court makes it difficulty to determine a proper way forward.  That is an invidious position for the court to be in.  But the position that I am faced with is that this matter needs to be resolved on an interim basis. 

17. And I am impressed by the submissions of the ICL that there was support for what might be considered, at least in part, the alternative contention of the father, namely that there should be some supervised time at an appropriate children’s contact service which would be respectful of those obligations under Part VII;  the mother’s concerns in respect of an allegation that the father presents an unacceptable risk, not necessarily to this child but because of issues relating to the child C;  but also the proper concern that the father has that in the absence of, as he would see it, evidence to the contrary there should be a resumption of time so that if, ultimately, his position is vindicated the relationship between he and the child will not have been entirely destroyed. 

18. This case, not dissimilar to other cases that confront the court, requires a delicate balance.  I have been critical of the affidavit of the mother filed 10 August 2015, and it is not simply a matter of idle criticism or some sort of judicial intransigence that brings me to that position.  The affidavit does not assist in understanding the issues.  It is the mother’s position in respect of C that she clearly thinks that the father did sexually assault the child and that the issue as far as the mother was concerned was not that something happened but that the child was not able to meet the requisite criminal standard, namely beyond reasonable doubt, an entirely different standard to that of unacceptable risk in this court.  The second aspect is that there are vague issues raised against the father in respect of perceived misconduct as set out in paragraph 11: 

    During our relationship, [Mr Banks] frequently took [the child] into the shower with him and locked the door. 

19. I am uncertain what that is meant to convey, but I assume that it is intended to convey sinister conduct.  Paragraph 12 has been the subject of significant discussion during the course of these proceedings, and it involves a trauma to the child’s foreskin which was apparently stuck behind the head of his penis.  The child at the time was allegedly nine months of age.  Whist it is not directly said in terms of any observation, the belief of the mother at paragraph 16 is that trauma was caused to the child’s penis by the father. 

20. The mother opines that he caused the trauma, then took no action to seek medical assistance for the child and that he was clearly responsible for the trauma, for whatever purpose that might have been, and was immune to the child’s cries of help and pain as a result.  I am uncertain whether it is suggested that the father’s actions were malicious, were wilful, were neglectful, or were in fact an exercise of some sexual assault on the child.  It is said that it was so painful that it took four men to hold down the child whilst the foreskin was forced back into place. 

21. The allegation is now of some antiquity and its mischief lies not just simply in its statement but in its restatement, it having been an issue raised in earlier affidavit material before this court.  To counter that, the father presents evidence in relation to the medical treatment of the child, presumably documents produced under subpoena.  And whilst it is always dangerous to draw an inference or a conclusion from heresay documents given that there is no ability to adequately or appropriately challenge the author or deponent of those documents,  I think that the mother’s assertion and allegation has no currency or connection with what appears to me to be the extent of the documents available.  If there was some veracity to the mother’s allegations the documents would make some reference. 

22. Indeed, counsel for the mother, as purposeful as she was able to be in the circumstance, could only consider the subpoenaed materials to be of assistance not in relation to the direct allegation that in some way the father caused a trauma to the child’s penis but to suggest that there might be some issue relating to mental health of the father.  It is always difficult at an interim hearing to make a clear finding of fact.  But that is not to say that it cannot be done or, indeed, that it should never be done.  In any event it can only be qualified as best as it can by the evidence that is before the court. 

23. It may well be that there is another category of evidence which would better assist in substantiating the allegation of the mother.  It is an allegation of the mother and in the same way that the documents in relation to that issue and the child’s medical attention and treatment were able to be obtained by subpoena and considered, so, indeed, the option was available to the mother in circumstances where she raised the matter and, indeed, raised it back in November of 2014 in her affidavit, repeated again in her affidavit filed on 10 August 2015. 

24. There is nothing before the court that would support the mother’s contention.  There is nothing before the court that would even suggest that the mother’s contention requires exploration.  Again, as unusual as it is, there are circumstances where for the purposes of this hearing but not necessarily any other hearing, I am entitled to make a determination or a finding about a particular matter.  This is one such occasion.  I do not find on the evidence that is presented that the father engaged in some wilful conduct, neglect or direct assault, sexual or otherwise, upon the child in relation to the oedema sustained by the child to his foreskin in the circumstances of this case. 

25. It appears from the evidence that is available without further explanation, that the child has simply suffered an unfortunate and no doubt painful medical condition but not with the florid aspects that the mother’s affidavit material would suggest or should be readily apparent from the materials that are there.

26. I should also raise that the court is not without the assistance of some reports.  It would be remiss of me not to mention that there is a report from Families SA prepared pursuant to an order made 29 September 2014 seeking that Families SA prepare a report as to the allegations by the mother made in the proceedings and the general circumstances of the children.  That report was presumably ordered by reference to s 69ZW of the Act.  That report is dated 13 March 2014 and is document 48 on the court file.  I have had the opportunity to read and consider carefully that report.

27. This is a case where the report is not of great assistance.  The report is predominantly a summary of notifications which is helpful in the sense of the very fact that an allegation has been made and may even be helpful in the court gaining some better understanding as to the extent of the conflict between the parties, but it is unhelpful in the sense of the court being able to rely upon the contents of the notifications.  They are exactly that, notifications, and the identity of the notifier is clearly not known and the focus and purpose of the notification is also not known.

1. It does appear that parties or persons connected with each of the parties may have had an appetite for notification that the child was at risk in the care of one or the other.  There is, however, one matter which probably needs to be considered because it was a matter raised specifically in the submissions of Ms E and that was the reference in the report to a statement or statements attributed to the paternal grandmother, Ms F.  The summary is set out in the second paragraph on page 4 of the document:

   The mother was engaging in a non-stop campaign of hate and denigration of the children’s fathers and she will continue to engage in such a non-stop campaign of undue influence, hate and denigration of the children’s fathers in an attempt to completely sever the children’s relationship with their respective fathers.  The mother does not give any consideration to the emotional effects of this on the children.  The mother excludes any person from her life that she feels she cannot control and cannot dominate.

2. I do not obviously accept the accuracy and the veracity of either that which was said or the content which was attributed to the paternal grandmother, but the point of it is that it has further undermined any confidence that the mother may have had in the paternal grandmother, that is there is now another level of mistrust.  The mother’s view of the paternal grandmother has been made clear in earlier affidavit material where she considered the involvement by the paternal grandmother to be adverse to the interests of the child and the parties.

3. The matter is raised again, not because I need to get to the bottom of it, but because, as part of the application or at least part of the submissions made on behalf of the father, it was suggested that, at some point, there might be the need to consider supervision and that that supervision could conveniently be dealt with in the guise of the paternal grandmother.  The implication is that the grandparents have a close and loving relationship with their grandchildren and would not see or do anything that would bring those children to harm.  We are not at the stage where I need to consider alternatives to supervision and I have indicated that if indeed some stage is reached where that occurs, there will be a process put in place to better assess any person who is put forward as a potential supervisor.

4. I have had regard to the affidavit material.  I was referred to an affidavit of the mother’s solicitor in order to set out a period where the parties engage in a text-message conversation.  Whilst I’m certain that it was provided or relied upon for a different purpose, namely a focus on the potential that the father had or the propensity that the father allegedly had in respect of the use of illicit drugs, it also, however, confirmed that at the time that the conversation took place the mother was not entirely opposed to there being a relationship between the child and the father.  I suspect that that period of goodwill has significantly abated, but it is important in terms of the timeline of this matter to highlight that there appears to be some evidence that the mother was not opposed and indeed considered that there was substantial advantage, all other things presumably being equal, that the father should resume and have a relationship with the child.

5. I’m not permitted simply to make an order because it feels that it is the right way to proceed forward.  I am obliged to bring some rigor to my consideration and to apply those parts of Part VII of the Act which are relevant to how an interim order can and should be considered.  I am mindful of what has been described enthusiastically, but perhaps conveniently as the legislative pathway as set out in Goode v Goode. Paragraph 82 in the judgment sets out the process by which an interim case should be considered.

6. I need to identify the competing proposals of the parties and in that regard, I have them.  The father would seek more expansive time with the child, but even he concedes, at least in the alternative and at least as part of paragraph 4 of his amended application that there might be some purpose and focus in the Suburb D Children’s Contact Centre providing supervised time.  The mother’s proposal, as I have indicated, is one of total opposition. 

7. I think that I have clearly identified the issues in dispute in the interim hearing.  Put simply, the mother’s position is that notwithstanding she originally supported or appears to have supported a relationship between the child and the father, that goodwill has now dissipated and she considers that the father is potentially a risk to the child, not just because of the conduct, as she alleges, between the father and the child, but between the father and C and also her allegation of his family violence towards her.

8. It is difficult to identify the agreed or uncontested relevant facts at an interim hearing.  Usually, only limited regard can be paid to such a concept, although I note in this case my determination that in respect of any allegation that the father has committed a trauma, deliberately so and with some malicious intent towards the child’s foreskin, I consider that there is no cogent evidence before me that will enable that finding to be made.  That is clearly not agreed and it is clearly not uncontested, but it is somewhat unusually a finding that I have made.

9. I am obliged to consider the considerations in s 60CC and in that regard, there is the usual tension that is to be found between the importance of maintaining a meaningful relationship between a child and his or her parent or parents, but also in doing so, to ensure that the child is not at serious risk of psychological or emotional harm.  If I were to find that there was evidence that the child was at such a risk then that consideration and those findings are to take precedence and priority to the desire of the court to maintain a meaningful relationship between a child and his or her parents.  I do not propose to go into the considerations that this Court has given in respect of a meaningful relationship, but I simply refer to the decisions of Mazorski v Albright, being a 2007 decision of her Honour Brown J, and the decision of the Full Court of this Court in McAll v Clarke, being a 2009 decision. 

10. I therefore must weigh up the competing primary considerations, namely the benefits to the child of a meaningful relationship and the need to protect the child from physical or psychological harm.  In that case and in that regard, I am satisfied that a proper way forward, all other things being satisfied in respect of the additional considerations of s 60CC of the Act, that a children’s contact centre, but in particular the Suburb D Children’s Contact Centre would provide an appropriate level of safety and certainty in relation to the child, certainly at this stage.  It will have the advantage of providing perhaps some feedback, although I acknowledge that that feedback is observational only, but it will also provide a structure and a focus and will have the not insignificant advantage of allaying the fears of the mother if she genuinely considers that any time between the father and the child places the child at risk in any significant way.

11. I am uncertain as to how the matter is thereafter to progress.  That arises because I am uncertain as to how a child, now of some three years and nine months, will react to his father and paternal grandmother in circumstances where he has not spent time with either of them since he was aged two years.  If the child was some years older, I think it would be reasonable to opine that sufficient relationship had developed between the child and the father that it is reasonable to assume it could be potentially easily rekindled providing that there were no other adverse circumstances to bring to account, but I do not have the expertise to provide any opinion as to what will happen in this case.

12. It may be that the child harbours residual memory of his father and paternal grandmother.  It may be that they represent complete strangers.  I do not know, but it is because of that and because of the need to set some pathway forward, in circumstances where, notwithstanding this case has been designated as a Magellan case, it is potentially one year away from a trial listing, that I need assistance.

13. I have considered that that assistance might conveniently be provided by the preparation of a report pursuant to s 62G(2) of the Act, and that report will provide what the observational report from the children’s contact centre may not be able to provide, and that is not just simply the observation, but what the observation actually means, what the child is able to cope with or deal with and how that may go forward.

14. I accept that the suggested report was initially not supported by the ICL.  The ICL, in his opposition, makes the very cogent point, that is the report may in fact be premature and obviously the less a child is engaged in an assessment or reporting process, the better it may well be for the child. In this particular case, rare as it might be, I consider that a report should be prepared and that is to reflect the uncertainty that I have as to how this child will react to his father.

15. The balance of s 60CC, in terms of the additional considerations, are all matters the party have some confidence that I’ve given careful and close regard to.  Obviously, proceedings on an interim basis and the lack of expansive evidence that would normally be present at a hearing require that some of the provisions of s 60CC simply cannot be provided or considered or will have no operation.  Some will, but generally and overarchingly, I am of the view that there is significant and real benefit that this child maintain a relationship with his parents.  He has a relationship with his mother.  He does not have a relationship with his father and I consider it in the best interests of the child that that relationship resume as soon as is reasonably practicable, providing it is, as will be the case here, in circumstances of strong and strict supervision.

16. In terms of a way forward, I am assisted by the inquiries made by the father’s solicitors as to the availability of the Suburb D Children’s Contact Centre to accommodate a timely resumption of supervised time commencing on 19 September, then on 20 September and thereafter by four weekly sessions, presumably of two hours duration, at times as may be determined by the director of the centre.

17. There is some little history to the involvement of that centre in the sense that on the last occasion, orders were made by me that required the parties to enrol.  They have done so.  Whether it is coincidence or the natural order of things or good planning that the centre appears to be available at relatively short notice, I think that that can only be to the benefit of the child.

18. I propose to order that there be six periods of supervised time between the child and the father under the auspices and supervision of the Suburb D Children’s Contact Centre.  The orders sought by the father includes the paternal grandmother.  I am not prepared to make an order that compels the paternal grandmother to attend, but in making the order that I will make, it will enable, at the father’s election, the paternal grandmother to attend.  I do so for a number of reasons.

19. Firstly, I consider the best interests of this child will be served by a proper focus being upon the father and the child.  That is not to in any way diminish the paternal grandmother, but it is simply to acknowledge that the focus in this case is a three year, nine month old child who hasn’t seen his father or grandmother for about one year and nine months.  It may be that the father seeks to undertake the supervised time initially alone in order to focus on the reestablishment of the relationship.  It may be that he determines that he will not to do that and that he would be assisted by the company of his mother.  It is a matter entirely for the father as to how he conducts himself.  He is the responsible adult, and he will need to make and give the matter proper consideration.  If he understands that at the end of all of this, there may well be a document which sets out the observations, it will be a matter for the father to determine and assess how he progresses forward with his son and whether the involvement of the paternal grandmother will or will not assist in the early stages of that reintroduction, but that is a matter for him.

20. Secondly, if I make an order that requires the attendance of the paternal grandmother, I am uncertain whether that will or will not fit the arrangements by the centre itself and, in particular, if there is any distress on any particular occasion, whether there should be the ability to ask the paternal grandmother to leave, but they will be matters for the father to exercise his appropriate considerations.

21. Noting that a family report is available either at the end of October or early November, I propose in addition to making the order for a s 62G(2) report, I propose to bring the matter back in November. I had originally considered whether I would bring the matter back sooner than that, that is, at a time between the conclusion of the supervised sessions and the preparation of the report, but that was done because I was concerned that there might be a long delay in the instigation of that report.

22. That is now not the case, and I think in all the circumstances, it would be best to bring the matter back in what might be considered a comprehensive fashion.  If, however, there are difficulties or problems, the matter can be brought back before me and it may be that there is a cancellation or an adjournment or a deferral of that report.

I certify that the preceding forty nine (49) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 27 August 2015.

Associate:  P M Malone

Date:  3 September 2015