Batkin and Batkin

[2013] FamCA 44

FAMILY COURT OF AUSTRALIA

BATKIN & BATKIN [2013] FamCA 44

FAMILY LAW – CHILDREN – Interim orders – With whom the children spend time – Where the Father has not spent time with the children since separation– Where previous interim Orders were made by consent to facilitate contact between the Father and the children in a therapeutic context with a view to re-establishing the relationship – Where the Mother has not complied with the interim Orders and the children have still not seen the Father – Where the Mother has entrenched views about the Father not spending time with the children – Further interim Orders made for the children to have supervised time with the Father – Order that a Warrant for the Mother’s arrest be executed if she fails to deliver the children to the Contact Centre

Family Law Act 1975 (Cth)

R & R (2000) FLC 93-000

APPLICANT: Ms Batkin

RESPONDENT: Mr Batkin

INDEPENDENT CHILDREN’S LAWYER: Ms Barbara Fox

FILE NUMBER: LEC 196 of 2008

DATE DELIVERED: 5 February 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 4 - 5 February 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Crane of Crane Paskins Law

SOLICITOR FOR THE RESPONDENT: Mr Boys of MPB Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER	Mr Hodges
INDEPENDENT CHILDREN’S LAWYER	Barbara Fox Solicitors

Orders

IT IS ORDERED UNTIL FURTHER ORDER

1. That the children, B, born … June 2001; N born … September 2002; and J born … March 2004 live with the Mother.

2. That the children spend time with the Father at all times as agreed between the Mother and Father but if no agreement at least:

   (a)for a period of four hours on the first Saturday of each month at the Town C Contact Centre (“the Centre”) for a period of six months commencing 2 March 2013 with such times to commence after midday where possible by arrangement with the Centre.

3. That after the children’s time with the Father as set out in Order 2(a) the Independent Children’s Lawyer is to obtain a report from the Centre in relation to the children’s time with the Father.

4. That the Mother deliver the children on 2 March 2013 at 1.30 pm (New South Wales time) in order for the children to commence supervised time with the Father.

5. That the Independent Children’s Lawyer will confirm the children’s attendance at the centre on 2 March 2013.

6. That pursuant to section 65Q(2) of the Family Law Act 1975 (Cth) a warrant shall issue to the marshal and to all members of the Australian Federal Police and to all state and territory police forces to arrest Ms Batkin, born … August 1964, and bring her before this Court.

7. That until further Order the Warrant lie in the registry pending the Independent Children’s Lawyer advising the Court by way of email on 4 March 2013 whether the Mother has delivered the children to the Centre.

8. If the Mother has failed to deliver the children on 2 March 2013 to the Centre the Warrant be executed and the Mother be brought before the Court as provided for above and thereafter as soon as possible and pursuant to section 65L of the Family Law Act 1975 (Cth) the Mother attend with the children upon a family consultant who will facilitate the preparation of an urgent short parenting assessment.

9. That each party keep the other appraised of their current postal address, email address and contact telephone numbers.

10. That all communication between the parties in relation to the children be by way of text message or email save in an emergency regarding the children when the parties with the care of the children is to communicate the emergency by telephone to the other party as soon as possible.

11. That the Mother advise the Father immediately should any of the children require emergency medical treatment of a life-threatening nature.

12. That the Father not denigrate the Mother in any telephone conversation with the children nor in any written communication with the children.

13. That the Mother not denigrate the Father to or in the presence or hearing of the children.

14. That neither party discuss these Court proceedings to or in the presence or hearing of the children.

15. That these Orders be sufficient authority for each party (at their own expense) to:

    (a)obtain copies of all school reports, newsletters, photographs and any other documents relevant to the children’s schooling; and

    (b)contact any medical practitioner or other allied health practitioner who is treating the child to release and provide to each parent any information or documents as that parent requests from time to time with the cost of provision to be borne by the party requesting the information.

16. The trial of these proceedings be adjourned for mention before the Honourable Justice Kent at 10:00 am on Monday 9 September 2013.

17. That the Independent Children’s Lawyer have liberty to apply on short notice to each of the other parties.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Batkin & Batkin 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 BRISBANE

FILE NUMBER:  LEC 196 of 2008

Ms Batkin

Applicant

And

Mr Batkin

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The final trial of these parenting proceedings was listed for two days to commence yesterday 4 February 2013.  In the result, and for reasons which follow, I have acceded to the application of the Independent Children’s Lawyer to make interim rather than final Orders.  I note that in the result that position was supported by the Father, that is, the making of interim rather than final Orders, and in some respects, the Mother likewise expressed, via her solicitor, her agreement to at least some interim Orders as will be discussed.

2. The parenting proceedings concern three children, B, born in June 2001, who is now 11, N, born in September 2002, who is now 10 years of age, and J, born in August 2004, who is now eight years of age.  The Mother is 48 years of age, and is employed in a government position, and the Father is 49 years of age, and works in the agricultural industry.  The parties married in March 2001, and finally separated in approximately October 2007.

3. The trial of these parenting proceedings together with property settlement proceedings came before Murphy J in November 2011.  His Honour then made final property Orders having determined the property adjustments between the parties that were just and equitable and by consent of all parties made parenting Orders on an interim basis.  Whilst the Orders handed up to his Honour were not expressed to be by way of consent so far as the parenting Orders were concerned, his Honour’s reasons record that in the course of submissions it became apparent that there was no difference between the parties as to the form of interim Orders that ought be made.

4. As is apparent from the terms of the interim parenting Orders made by Murphy J and from his Honour’s reasons, in circumstances where the children had, by the time of that trial, essentially had no direct time with their Father for some four years against the background of a longstanding dysfunctional parental relationship, what was contemplated by those interim Orders was a reintroduction of the Father into the lives of the children in the hope that that would provide a framework by which the parties themselves, including the Independent Children’s Lawyer, might be able to frame final Orders.

5. Notably, the consent parenting Orders in paragraph 3 in particular set out the framework the parties had agreed to.  In essence it involved the parties engaging with Ms P, a therapist, with a view to re-establishing the relationship between the children and the Father, and thereafter provided for letters to be written by the Father to the children by the Independent Children’s Lawyer, moving to the position for Ms P to meet with the children and the parents for three one-monthly sessions with a view to facilitating the children spending time with their Father.

6. Notably, subparagraph 3(g) of the Orders provided that the Mother and the Father will at all times follow any direction given to them by the therapist in relation to this process.  Those Orders contemplated the children spending a period of six months of supervised time with the Father on a fortnightly basis at the Town C Contact Centre, or such other contact centre as might be agreed.  Despite the feature that the parenting Orders provided to his Honour were expressed to be made by consent, his Honour determined to provide, with respect, detailed reasons so far as those Orders were concerned, and addressing also the question of making Orders on an interim rather than a final basis.

7. For the purpose of the proceedings before me I was provided, in the Independent Children’s Lawyer’s case, with an affidavit of Ms P, the registered psychologist who undertook the therapy pursuant to the November 2011 Orders.  At the outset of the trial in circumstances where I had the detailed reasons of Murphy J and the affidavit of Ms P, which I will discuss shortly and which shows that what was contemplated by the subject Orders in the end result did not flow through to its contemplated conclusion, I raised with the parties the utility of proceeding into evidence over two days in circumstances where it seemed to me that the result of that process would simply be to confirm what was already known about the matter, as flowing from the reasons and findings of Murphy J and the conclusions expressed by Ms P in her affidavit.

8. In the result, in the proceedings before me the only oral evidence that was given was that of the Mother who was relatively briefly cross-examined by counsel for the Independent Children’s Lawyer.  In the result, the Father was not required for cross-examination by the other parties, and nor was Ms P required for cross-examination.  In her affidavit, Ms P sets out in paragraph 6 her understanding of the Orders made in November 2011 and confirms that subparagraphs (a) to (e) of those Orders was successfully completed by the parties.  She then records:

   … However, the counselling has been unable to progress to Orders 3(f-h), as despite my recommendation to the parents regarding the progress of the counselling (in accordance with Order 3(g)), it appears that [the Mother] has decided to opt out of the counselling process.  [The Mother] has indicated in text messages to the writer that this is because the boys do not wish to see their father.  However, [the Mother] has not taken up my invitation to discuss her concerns in person.

9. Notably, it seems that from the beginning of the counselling process the Mother was at some pains to emphasise with Ms P that she would not be supportive of the position being reached of the children moving to unsupervised time with their Father.  Paragraph 10 of Ms P’s report is as follows:

   However, [the Mother] wanted to make it clear at the beginning of the process that at no point would she consider unsupervised contact between [the Father] and the children.  [The Mother] expressed anger that the children were being made to have contact with their father.

10. Similarly, in paragraph 15 of her report, Ms P records:

    [The Mother] argued that the children are “happy and well-adjusted children” and she does not want to risk this by them resuming contact with their father.  When her fears were explored, [the Mother] could only say that she feared that [the Father] would physically harm the children in order to hurt her.  However, she acknowledged that this fear was not founded in anything, which [the Father] had done.

11. At paragraph 14 of her report, Ms P records that the Mother’s position with the children was that she had told them, “If they want to see their father, I would be happy to take them”.

12. Notably, as paragraph 16 of her report records, Ms P counselled the Mother so far as supporting the children with regard to the court Orders and to facilitating their contact with their Father.  Most relevantly, Ms P notes:

    … I advised [the Mother] that at this stage the children need to be given overt-permission to want to see their father by actively encouraging them to do so rather than contact with their father being presented as a choice.

13. In the brief cross-examination of the Mother that occurred yesterday it is readily apparent to me, and I find, that the Mother does not actively encourage the children to participate in any contact with their Father. Rather, her position is passive against the background where the children are plainly aligned with her, in circumstances where they have lived with her since separation with essentially no time with their Father. 

14. I interpolate here that I have no doubt that the Mother is a capable Mother and provides for her children in terms of their physical, intellectual, and emotional needs in all respects and has done so now for many years.

15. The one qualification on that is an important one, and that is that she appears to have a complete block so far as recognising the need for these children to be able to form their own views of their Father and have the opportunity to do so.

16. In terms of the children themselves, Ms P records at paragraph 18 of her report the outcome of her first counselling session with the three boys.  Notably, that paragraph concludes:

    … When the subject of meeting with their Father in a session facilitated by myself was raised with them, they did not express any negative feelings or show any negative affect.  It was my impression that they were fine with this.

17. Ms P then records in her report, from paragraph 19 and onwards, that the Mother appeared anxious to her and wanted to speak to her immediately following the session.  The Mother reminded Ms P that she would not agree to unsupervised contact between the boys and their Father and raised concerns about prank calls she had been receiving which she believed were from the Father although she was unable to offer an explanation as to why that would be so.  Ms P notes in her report a distinct change in the demeanour of the boys following that first session where they had apparently not expressed any negative feelings or views about the potential meeting with their Father.  I note that in the next stage of the counselling the Mother became angry and upset when Ms P reminded her of the reportable nature of the counselling, and she specifically requested that Ms P not report some of the things the Mother had told her.

18. Ms P records the Mother “walked out in anger without giving me an opportunity to explain further and to respond to her concerns”.  At paragraph 23, Ms P records the change in the boys at the second counselling session in terms of a marked change in their demeanour since her initial meeting.  Notably, by reference to the reasons of Murphy J which I will refer to shortly, at paragraph 27 of her report, Ms P records the boys making negative statements about their Father which are in a similar vein to those recorded historically in the reasons referred to. 

19. For example, when asked why they then did not want to see their Father the boys each said that it was because of things that their Father had done in the past, “such as taking their trailer, loosening the nuts on their vehicles, which threatened their lives”.  Further, “[B] said ‘we could have died’ and [N] and [J] agreed with him.  They also told me that their Father had hit their Mother and given her a black eye”.  In the course of that process, paragraph 29 records Ms P’s attempts to reconcile the boys’ stated views with the prospect of them meeting their Father.

20. That includes the following: 

    The boys then wanted to know how long the session would last.  I explained to them that it would not last for more than an hour, but the exact time would be guided by them and their degree of comfortableness with the session.  [B] then said that his father had not even apologised.  I suggested that [B] would be able to talk to his father about this when he saw him.  [B] appeared satisfied and reassured by this response.  I then asked the boys for their agreement to see their father on one occasion with no expectation that they would have to see him again after that if they did not agree.  The boys agreed to this.   

21. Ms P notes that on returning to their Mother after that session she heard one of the boys tell their Mother, “She said we have to see him”.  It is apparent from the balance of Ms P’s report that the Mother took the view that Ms P was forcing the position upon the boys that they would be seeing the Father contrary to their own wishes and views.  On that basis, it seems that the Mother disengaged from the process thereafter in terms of supporting any further attempts for the boys to have an actual meeting with the Father.  As will be already apparent the central focus of these proceedings for some time has been the views of the boys.

22. Parenting orders are determined by this court under the framework of part VII of the Act, with best interests of the children being the paramount consideration, and the determination of best interests being the result of consideration of the considerations expressed in section 60CC of the Act.  In terms of views of children, which is obviously an important one of those considerations, it must be recognised that the place of views and the weight to be given to views varies from case to case.  And as the Full Court put it in R & R (2000) FLC 93-000 (at paragraph 54):

    There are many factors that may go to the weight that should be given to the wishes of children and these will vary from case to case.  It is undesirable and indeed impossible to catalogue or confine them in the manner suggested.  Ultimately it is a process of intuitive synthesis on the part of any trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children’s best interests.  

23. Obviously, a starting point is to look at things such as the age and maturity of the subject children.  I have already noted the ages of the children, and it follows that they were each very young at the time of their parents’ final separation in 2007.  Another relevant factor is the strength of the views expressed by children and the length of time they have been held.  In this case there has been a consistent theme in the expressed views of the children.  However, of fundamental importance is to consider the extent to which views expressed by children are based on a choice that is well thought through and based on appropriate – as distinct from irrelevant or peripheral – matters. 

24. And perhaps most importantly, the extent to which the views are the result of pressure on a child, whether intended or not, and the extent to which views are a reflection of their emotional attachments.  In short, the extent to which expressed views reflect the child or children’s own well-considered choice as opposed to the influence of their circumstances and emotional attachments. 

25. Turning to the reasons of Murphy J it is to be noted that no party in the proceedings before me sought to depart from those reasons or findings of fact made by his Honour.

26. His Honour had the advantage of cross-examination of relevant parties, including, at that time, Mr S, who had written a report, and the psychologist, Mr D, who had written two reports.  His Honour’s reasons for judgment contain extensive reference to those relevant reports and to the evidence from those witnesses.  Obviously, the background to this case contains allegations and counter-allegations of, in a historical sense at least, family violence.  And much of his Honour’s reasons were devoted to resolution of those questions.

27. Relevantly, in terms of his findings in that respect, his Honour recorded, commencing at paragraph 31, the following:

    31. Here, and crucially, I accept that the parties’ relationship was marked by conflict, aggression and emotional abuse.  I accept that the parties’ relationship was marked by family violence.  Indeed, each of the parties appeared to admit as much. 

    32. I find that each party engaged in emotional abuse of the other and in family violence.  Again, each party effectively admits as much. 

    33. I find that that emotional abuse and that family violence occurred in front of the children. 

1. His Honour recorded a finding at paragraph 36 to the effect that he had no difficulty in finding that the children might have also perceived the Father as frightening, irrespective of who, as between the parents, may or may not have been at fault during the emotional interchanges, or who may or may not have instigated those interchanges or contributed to them more or less than the other.  His Honour also recorded a finding that the Mother was at times the instigator of those emotionally-charged events but he did not see how that made it any more or less relevant.  That is, focussing upon the children’s perceptions, from their perspective their perception would have been conflict, including physical and emotional conflict, between their parents. 

2. Importantly, it needs to be recognised that the Mother advanced a case before his Honour to the effect that the Father had perpetrated violence upon the children.  At paragraph 38 of his Honour’s reasons, he records a specific finding that the Mother had exaggerated her evidence in this respect in terms of any violence perpetrated by the Father upon the children.  His Honour recorded that the Mother had alleged in oral evidence that the children’s fear was based in regular episodes of the Father punching and kicking them.  It is readily apparent from the reasons as a whole that his Honour, Murphy J, rejected that case.  He recorded at paragraph 45 of his reasons:

   I think it highly likely that the Mother’s specific allegation that the Father has “punched and kicked the children” is false.  In any event, I consider it highly likely that the Mother has exaggerated direct behaviour by the Father toward the children.

   Again, at paragraph 51 of the reasons, his Honour recorded:

   I do not accept the Mother’s evidence that the Father has perpetrated violence of the “punching and kicking” to which she referred in her evidence.  I consider, however, that the general tenor of the parties’ interrelationship during the course of their cohabitation is likely to have had an impact upon the children, and I find it unsurprising that the children would talk about fear, at least in broad terms, when speaking about their Father to the report writers.

3. Murphy J reiterated his finding at paragraph 48, that the relationship between the parties was marked by family violence, in which both parties engaged.  And he specifically recorded a finding that it is likely the Father had given a false account of the extent of violence perpetrated by him upon the Mother. 

4. The following findings remain as true today as they were as at November 2011 when his Honour recorded them and I quote as follows, commencing at paragraph 52:

   I also find very troubling the evidence in respect of the perception of the father in the mother’s household.  This is the man who this woman chose to live with and have three children with.  That she now considers that a mistake – and a big mistake – is not a reason for denying to these children the only Father that they will ever have.  I found the mother’s evidence that she “hasn’t gone out of her way” to inculcate negative attitudes in the children to be troubling; it is troubling in my view more for what it doesn’t say than for what it says.  

5. His Honour specifically found that the Mother’s hatred towards the Father was obvious in the proceedings before him and his Honour found it inconceivable that consciously or unconsciously those feelings would not manifest to the children.  His Honour specifically found it unlikely that the Mother has not, from time to time, made her feelings abundantly clear to the children.

6. I interpolate here that the cross-examination of the Mother yesterday confirmed that the Mother has continued to discuss with the children negative views of the Father she has formed.  For example, following the property Orders it is her view that the Father stole some of the livestock she was to receive under the terms of the Orders.  She was unable to substantiate that belief but nevertheless shared it in discussions with the children.

7. His Honour specifically addressed questions at the time of the proceedings before him as to whether it was now “too late” to restore or attempt to restore some relationship between these boys and their Father.

8. Commencing at paragraph 87 of his reasons, following a detailed discussion of the expert evidence that was before him, his Honour recorded the competing considerations and noted:

   87. Each of [Mr S] and [Mr D] were, however, persuaded in their own minds that it was not “too late”, and, particularly given the children’s ages and their prepubescent stages of development, that now is the time to attempt to facilitate for them a relationship with their father that he says they need and which each of the experts appear to also say they need.

   88. The essential reason for that, despite their expressed views and their expressed concerns, is that they are – as each of [Mr S] and [Mr D] say – a number of what might be described as psychological negatives for children if they grow up firstly without a Father or secondly, if they grow up without a Father in circumstances where they have not, for themselves, been afforded – sorry, when they have not been afforded the opportunity for themselves  to arrive at an opinion of the nature of the relationship with him.

   89. Those psychological negatives are according to each of [Mr S] and [Mr D], particularly harmful as children go through puberty and into early adulthood.  That is, each of [Mr D] and [Mr S] flagged the potential for there to be significant detriment to the children should that lack of contact with a Father occur.

9. I interpolate at this point that there is little in the way of evidence in the period since November 2011 as provided by the affidavit of Ms P to suggest that the boys express any fear of their Father.  They did not articulate to Ms P as a basis for not wishing to see their Father that they were fearful of him nor in any reasons did they give for not wishing to see their Father did they suggest that they had ever been victimised by him in any physical sense.

10. What the boys did was regurgitate the views expressed by their Mother in terms of attributing to the Father the capacity to perpetrate thefts from her and otherwise her negative views of him.

11. True it is that they did make some reference to physical violence perpetrated by the Father on the Mother but it is notable that in J’s case, for example, he would have been barely three years old in terms of the time when the parties finally separated and he purports to give as an actual memory of his witnessing an occasion of physical violence between his parents.

12. In the result, his Honour was persuaded to make interim Orders rather than final Orders for the reasons given, commencing at paragraph 106 of his Honour’s reasons which I will not restate here.

13. Importantly, his Honour sought to emphasise that the intention of the interim Orders was the time and more importantly a relationship between the children and the Father would be facilitated by those Orders with a view to the parties striking agreement on a final basis ultimately.

14. In passing I note that whilst the Mother emphasises the views of the boys as the foundation for her case it would seem that in her interchanges with Ms P, as already referred to, that irrespective of whatever views the boys themselves formed, she would remain opposed to a progression of time to unsupervised time between the boys and the Father.

15. That is while she purported to support that whatever views the boys expressed she would give effect to, she ruled out, it seems, any prospect of there being a move to unsupervised time between the Father and the children by stressing that on more than one occasion in the early stages and continuing in the process applied by Ms P.

16. In the proceedings before me the Independent Children’s Lawyer, who I note is charged with the statutory responsibility to represent the best interests of the children the subject of these proceedings, filed on 18 January 2011 proposed final Orders, at least on a preliminary basis.

17. In the result, the Independent Children’s Lawyer moved from a position of seeking final Orders to seeking interim Orders essentially on the basis that what was in contemplation by the Orders that had been made by Murphy J did not come to fruition in the circumstances already described.  The Father, as I have noted, likewise supported Orders being made on an interim basis.

18. For her part, the Mother, via her solicitor, expressed agreement to interim Orders at least for the boys commencing supervised time at the Town C Contact Centre on 2 March and expressed agreement, likewise, that the process continue on a monthly basis for a period of six months.

19. Because it was agreed that Orders be made on an interim basis, it was unnecessary for there to be further litigation of the issue of equal shared parental responsibility being an Order that was initially sought by the Independent Children’s Lawyer and supported by the Father.  That is, as it was contemplated that any Orders I make be made on an interim basis, it was agreed that that aspect of the matter need not be pursued currently.

20. The issue in relation to time then resolved into one of, even on an interim basis, the Independent Children’s Lawyer, supported by the Father, seeking that after that initial six month period the time move to an unsupervised basis for four hours once a month for the following six months, moving in a progression then to ultimately alternate weekend time.  The Orders framed by the Independent Children’s Lawyer were predicated upon a report being obtained from the Town C Contact Centre following the initial period of six months of supervised time.

21. There were also issues concerning the Orders sought by the Independent Children’s Lawyer in relation to the issue of a Warrant in the event that the Mother failed to have the children attend at the Town C Contact Centre on 2 March.

22. The Order, as originally framed, was that the Warrant would become active if the Mother failed to deliver the children to the Centre and also if the children failed to have supervised time with the Father.  In the course of submissions and interchanges between the bench and the bar table, the Independent Children’s Lawyer agreed that the Order sought, so far as the warrant is concerned, should be limited to the requirement for the Mother to deliver the children to the Centre.

23. It seems to me that whatever be the outcome of the supervised time for the next six months it is unlikely that the entrenched views of the Mother will change.  That is her entrenched view seems to be that the children should not have unsupervised time with the Father.

24. In circumstances where his Honour Murphy J has made a specific finding contrary to the Mother’s case, that the Father does not present an unacceptable risk of abuse to them, it would seem that the Mother is left in the position of attempting to rely upon the stated views of the boys themselves for the proposition that they should not move to unsupervised time.

25. In circumstances where a report is to be obtained from the Town C Contact Centre following the first period of six months it seems to me that it is important that further consideration be given to the parental arrangements for these boys into the future.  It may well be that the Mother’s entrenched position results in the court considering, or the parties advancing, other proposals with respect to the children.

26. What I propose to do, therefore, is to adjourn the trial of these proceedings for mention before me at 10:00 am on Monday 9 September 2013 against the background of the other Orders I will make.  Obviously 9 September 2013 follows soon after the expiration of the initial period of six months under discussion.

27. There will also be liberty for the parties to apply and in particular for the Independent Children’s Lawyer to apply in the event that what is proposed by these Orders, and in particular these boys spending monthly time with their Father under the Orders for the next six months, does not occur for any reason, the matter can be brought back to the court for further agitation.

28. Against that background and for those reasons I therefore make these Orders.

ORDERS DELIVERED

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 5 February 2013.

Associate: 

Date:  5 February 2013