Bead & Gaffin
[2024] FedCFamC1F 779
•16 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bead & Gaffin [2024] FedCFamC1F 779
File number(s): PAC 1564 of 2020 Judgment of: CURRAN J Date of judgment: 16 August 2024 Catchwords: FAMILY LAW – PARENTING – Where the final hearing was adjourned in circumstances where the father was charged with an offence concerning the sexual touching of one of the children subject to the proceedings – Where orders were made by consent for the children to live with the mother and for the older children to spend no time with the father in accordance with their wishes – Where there is a dispute as to what time the younger children should spend with the father prior to final determination of the matter – Where it is agreed that the paternal grandparents will supervise the children’s time with the father – Where the court considers orders to promote the safety of the children – Orders made for the children to spend time day time with the father during school holiday periods. Legislation: Acts Interpretation Act 1901 (Cth) s 15AA
Evidence Act 1995 (Cth) s 128
Family Law Act 1975 (Cth) ss 4(1), 60B, 60CA, 60CC, 69ZL
United Nations Convention on the Rights of the Child (1989) Art 19
Cases cited: Amalgamated Wireless (Australasia) Ltd v Philpott (1961) 110 CLR 617
Aon Risk Services v Australian National University (2009) 239 CLR 175
Baini v R (2012) 246 CLR 469
B and R and the Separate Representative (1995) FLC 92-636; [1995] FamCA 104
Corporate Affairs Commission NSW v Yulli (1991) 172 CLR 319
De Luca & Martinelli [2016] FamCA 207
Eastley & Eastley [2022] FedCFamC1A 101; FLC 94–094
Goode & Goode (2006) FLC 93-286
Isles & Nelissen (2022) FLC 94-092
Marvel & Marvel (2010) 43 Fam LR 348
Shamon & Shamon (No 9) [2023] FedCFamC1F 586
SS v AH [2010] FamCAFC 13
Division: Division 1 First Instance Number of paragraphs: 156 Date of hearing: 13 August 2024 Place: Sydney Solicitor Advocate for the Applicant: Mr Gittoes-Caesar Solicitor for the Applicant: Lander & Rogers Counsel for the Respondent: Mr Hartwell Solicitor for the Respondent: Ann Legal Counsel for the Independent Children's Lawyer: Dr McConaghy Solicitor for the Independent Children's Lawyer: Christina Lam & Associates ORDERS
PAC 1564 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BEAD
Applicant
AND: MR GAFFIN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CURRAN J
DATE OF ORDER:
16 AUGUST 2024
THE COURT ORDERS THAT:
1.The children X, born in 2014, Y, born in 2016 and Z, born in 2017 shall spend time with the father supervised by at least one of the paternal grandparents, Ms Gaffin and Mr C Gaffin (‘the Paternal Grandparents’), after the filing of the undertaking as ordered pursuant to Order 4 made on 13 August 2024, as follows: -
(a)For Term 3, 2024, Term 4 2024 and all school holiday periods thereafter, on the first and second Saturday and Sunday of the school holidays from 9.00am to 5.00pm with such time to take place in the City D region.
2.Changeover shall take place as agreed in writing between the parties, and failing agreement, at E Street McDonald’s, City D.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bead & Gaffin has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTCURRAN J:
These reasons for judgment were delivered orally and have been corrected from the transcript.
Consistent with the provisions of s 69ZL of the Family Law Act 1975 (Cth) (“the Act”) I set out my reasons in short form.
INTRODUCTION
These reasons concern interim parenting proceedings between the mother, Ms Bead, and the father, Mr Gaffin. There are six children of the marriage, U born in 2007 (“U”), V born in 2009, (“V”), W born in 2010 (“W”), X born in 2014 (“X”), Y born in 2016 (“Y”), and Z born in 2017 (“Z”).
As at the date of the final hearing, the children lived with the mother and were spending time with the father and the paternal grandparents on the third weekend of each month and for half of each school holidays.
The matter was listed for final hearing commencing on 13 August 2024. On the first day of the final hearing, the father, through his counsel, made an oral application to adjourn the hearing, as he was charged with a sexual offence in relation to allegations in respect of the parties’ daughter W.
The application for adjournment was not opposed and was granted in circumstances of the very serious allegations and the potential impact on the final hearing of the matter. The final hearing was vacated.
The father’s counsel then made an oral application for interim parenting orders in relation to the father spending supervised time during the school holidays with the youngest three children of the marriage, being X, Y, and Z.
THE FATHER’S ORAL APPLICATION TO VACATE THE HEARING DATE
The father's adjournment application was not opposed by the mother or the Independent Children’s Lawyer (“ICL”).
The father's right to silence and his defence to his criminal charges would be significantly compromised if he answered questions in cross-examination which go to the very heart of the decision I am asked to make, namely what orders are in the best interests of the children having regard to the factors I must consider from s 60CC of the Act, including the safety of the children.
The provision of a s 128 Certificate pursuant to the Evidence Act 1995 (Cth) (“s 128 Certificate”) is not an answer to his right to silence, as I see it on these facts, given the serious nature of the charges alleged.
If the father exercises his right to silence, as he is entitled to do, the family law proceedings will be compromised, as the Court will not have evidence before it that it needs to make findings necessary to determine orders that are in the children's best interests.
If he is found guilty of the allegations or if the allegations the mother makes of sexual abuse of the child and violent behaviour are accepted by this Court, it would be a serious matter impacting directly on the Court's decision to make an order that is in the children's best interests as to which parent the children should live with, and what time, if any, they should spend with the other parent.
I cannot see how the Court can have placed before it the proper evidence it needs to make this important and serious decision if the father, as is his right, exercises his right to silence. Only if a s 128 Certificate is issued will there be the prospect of the necessary evidence being revealed, however, it cannot be known where the cross-examination of the father will go. Even if a s 128 Certificate is issued, this may not be a sufficient protection to protect his right to silence given the very serious charges he is facing.
The right to silence is a tenet of our criminal justice system. The best interests of the children and the overarching principles are the cornerstone of parenting orders in the family law system.
Delay is a significant concern to all parties, the impact on the children in particular, and the impact on other Court users, are factors to be considered. The principles as set out in the case of Aon Risk Services v Australian National University (2009) 239 CLR 175 are relevant to this consideration.
The possibilities are that the Court would not compel the father to give evidence about the matters the subject of the criminal charges, or I would compel him to give such evidence and provide the s 128 Certificate.
Compelling a party to give evidence when there is a potential criminal charge has been dealt with in a decision of his Honour Berman J in De Luca & Martinelli [2016] FamCA 207. That decision however is vastly different to this application, in that it involved allegations of fraud in a property proceeding, where the issuing of a s 128 Certificate provided the necessary protection in respect of the possibility of pending criminal charges, while permitting the civil proceeding to continue. The difference in this case is that a serious criminal charge has been laid, in respect of the father’s conduct relating to a child who is subject to these proceedings.
The evidence in this case will explore the subject of the criminal charges that the father faces. The only way these matters can be tested is through cross-examination. The father will be cross-examined on the matters upon which he has been charged. It is also important to note that if convicted, the father would likely face a term of imprisonment.
I have determined that his right to silence is the most compelling reason for the adjournment of the hearing, and despite my reluctance to vacate a final trial of parenting matters that have been in the Court for years, I granted the application.
I find that in the facts of this matter involving the competing applications for orders that impact the six children of the relationship, and in particular the youngest three children, the father's right to silence must take priority over the principles for the Court to act as quickly as is possible to determine to finality what parenting orders are in the best interests of the children.
Given that the children are currently living in a stable and well-settled environment and there are no safety issues pressed by the father, and the agreed position is that the father will spend limited and supervised time pending the outcome of the criminal proceedings, the hearing date was vacated.
CONSENT ORDERS
Interim orders were made by consent discharging many of the existing orders and for the mother to have sole parental responsibility for the children, for the children to live with the mother, and for the paternal grandparents to file undertakings as to their supervision of the father’s time. What remains in dispute is the father’s supervised time with the children, where it would take place, and the frequency of time. The location for changeover was also in dispute.
It was agreed that the father should only spend time with the children during school holiday periods, as supervised by the paternal grandparents. The terms of the undertaking were agreed.
MATERIAL RELIED UPON
No application or affidavit or responding material was filed in support of the application for interim orders. The oral application was made and the application was dealt with by the parties taking me to all of the evidence relied upon when they were making their oral submissions. They were on notice that I would have regard only to the material that I was taken to in the circumstances of the application.
Each party referred variously to parts of their trial affidavits and to the entirety of the Family Report dated 31 January 2024 in support of their oral submissions. Additional evidence was tendered, being:
(a)the Court Attendance Notice and the Fact Sheet relating to the father’s recent charge;
(b)a COPS record, detailing an alleged threat to kill the mother and her former partner allegedly made by the father;
(c)the father’s criminal history indicating other outstanding criminal proceedings, including in relation to an allegation of stalk/intimidate against the mother and her former partner;
(d)the provisional Apprehended Domestic Violence Order (“ADVO”) protecting the mother from the father in early 2023 for a two year period;
(e)the Affidavit of the paternal grandmother; and
(f)the bail conditions for the father.
THE LAW
Interim parenting proceedings
Counsel for the ICL helpfully referred to the decision of her Honour Christie J in Shamon & Shamon (No 9) [2023] FedCFamC1F 586, wherein her Honour helpfully summarises the authorities which apply to interim parenting decisions.
The Full Court in the matter of Goode & Goode (2006) FLC 93-286 at [81]-[82] set out the procedure to be followed at an interim hearing:
81. In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.
82.In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
As such, the legislative pathway is to be followed, noting in particular that the best interests of children is the paramount consideration consistent with s 60CA and that the Court should take a conservative approach in interlocutory parenting matters, and that includes having caution in relation to the making of any findings of fact (see Marvel & Marvel (2010) 43 Fam LR 348).
The s 60CC(2) factors which the Court is to consider are set out as follows:
(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii) each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c) the developmental, psychological, emotional and cultural needs of the child;
(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f) anything else that is relevant to the particular circumstances of the child.
The Court must, pursuant to s 60CC(2A) have consideration to any history of family violence, abuse, or neglect involving the children or a person caring for the children, and any family violence order that applies or has applied to the children or a member of the child’s family.
Assessment of risk
Per Isles & Nelissen (2022) FLC 94-092, in assessing risk I am required to have consideration to all of the circumstances, including historical conduct, whether or not there is sufficient evidence to make a finding of fact on the balance of probabilities in relation to the allegations made, in order to determine whether there is a possibility of harm arising in the future.
In Eastley & Eastley [2022] FedCFamC1A 101; FLC 94–094, the Full Court observed the need for a trial judge to consider the cumulative effect of the whole of the evidence in determining an assessment of risk, rather than merely dealing with each individual allegation in an isolated fashion at [33]:
…the law did not require the primary judge to assess the potency of the risk of harm posed to the children by reference to the evidence concerning individual events in isolation from the remainder of the evidence. On the contrary, the primary judge was required to assess the level of risk posed to the children on the whole of the evidence, since the strength of the evidence lies in its cumulative effect, much like how the strength of rope derives from the combination of its individually weaker strands (Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125 at 127–130 and 141; Savage v Lunn [1998] NSWCA 203; J.D Heydon, Cross on Evidence (LexisNexis Australia, 13th edition, 2021) at [1110] and [9040]).
The concept of arrangements which promote the “safety” of the child is new terminology in the jurisdiction. The starting point in the interpretation of the construction of a statutory provision is, as per Gaudron J in Corporate Affairs Commission NSW v Yulli (1991) 172 CLR 319 at 340, as to its “meaning and effect according to ordinary grammar and usage”.
The definitions of “safety” according to the Macquarie Dictionary are:
1.The state of being safe; freedom from injury or danger.
2.The quality of insuring against hurt, injury, danger or risk.
According to the Acts Interpretation Act 1901 (Cth) at s 15AA, the interpretation which would best achieve the purpose or object of the act is to be preferred to each other interpretation.
Section 60B of the Act contains the object of Part VII of the Act which deals with children, and it states:
(a) To ensure that the best interests of children are met, including by ensuring their safety; and
(b) To give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
To promote the safety of the child and each person who has care of the child, according to the ordinary meaning of the word, inherently requires an assessment of the likelihood of injury, danger, or risk occurring. In my view, to make orders using this interpretation of safety is the interpretation which best achieves the purpose of Part VII, ensuring the best interests and safety of the children.
There is significance in parliament's choice to amend the Act. Per Gageler J, as he then was, in Baini v R (2012) 246 CLR 469 at 484-485, referring to the unanimous decision of the High Court in Amalgamated Wireless (Australasia) Ltd v Philpott (1961) 110 CLR 617 at 624:
The modern contextual approach ordinarily requires that statutory language re-enacted in an identical form after it has acquired a settled judicial meaning be taken to have the same meaning. It equally requires that, change of drafting style aside, statutory language re-enacted in an altered form after it has acquired a settled judicial meaning be taken to have a different meaning. Were it otherwise, legislative policy choices would be blurred and orderly legislative reform would be impeded.
On my reading, the meaning of “safety” in s 60CC(2)(a) requires a similar analysis of risk of harm as established by the previous iteration of s 60CC of the Act and established in case law.
Additionally, when considering the meaning and effect in ordinary grammar and usage, the requirement to promote safety may permit a more cautious approach in making orders than that which was applied to determining what was unacceptable risk.
Finally, the arrangements must promote the safety of the child but also the safety of each person who has care of the child.
In changing the structure of s 60CC of the Act, parliament has removed the hierarchical aspect which formerly compelled the Court to have regard to the need to protect the child from harm as the primary consideration, above all other factors. What has changed, and what I infer as the intention of the legislature, is that the Court is now required to assess safety as one of many factual considerations under s 60CC(2) of the Act.
To make orders that are in the best interests of the children and best promote the safety of the child and each person who has care of the child, the Court must undertake an assessment of the risks arising in the circumstances of each case.
Having regard to United Nations Convention on the Rights of the Child is helpful in illuminating the specific factors that the Court is to have regard to when making orders in relation to children, including at Article 19 compelling state parties to take all measures “to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse”.
These factors are in reality embodied in the domestic law applied in this Court as the Act, under s 60CC(2) contains mandatory considerations, which cross over those identified in Article 19.
THE COMPETING PROPOSALS
The father sought orders that the children spend half the school holidays with the paternal grandparents at their home in Town F and that he be permitted to spend time with the children when they are in the presence of the paternal grandparents between the hours of 9.00 am and 5.00 pm. The orders sought by the father were drafted to suggest that the time sought was between the children and the paternal grandparents, not time with the father. The paternal grandparents were not parties to the proceedings. On a proper reading, the orders sought were for the children to spend time with the father by proxy.
The ICL and the mother sought orders that the children spend time with the father, supervised by the paternal grandparents, on the first and second Saturday and Sunday of each school holiday period from 9.00 am until 5.00 pm, with such time to take place in the City D region, with changeover to take place as agreed and failing agreement at McDonalds on E Street in City D.
THE ISSUES IN DISPUTE
The only issue for determination on an interim basis was the question of where the father’s supervised time with the children would take place, the frequency of that time and the location of changeover.
MATTERS NOT IN DISPUTE
It was agreed that an order should be made for the mother to have parental responsibility for the children and sole decision-making authority in respect of decisions concerning major long term issues as defined in s 4(1) of the Act effecting the children.
It was agreed to discharge orders 2, 8 to 18, and 20 to 24 of the previous orders made in September 2020. It was agreed that the father should only spend time with the children as supervised by one or both of the paternal grandparents. The terms of the undertakings to be signed by the paternal grandparents were agreed.
It was agreed that the father had been charged prior to the commencement of the final hearing with a serious criminal offence, and that is alleged to have occurred in early 2020, the alleged victim being his daughter W, who was then nine years of age. The Statement of Facts was exhibited.
It was agreed that in addition to the charge of intentionally sexually touching a child, the father also has other pending criminal charges of threat to kill the mother and her former partner and a charge of breaching the existing ADVO. The Statements of Facts with the details of those charges were not in evidence, but it was agreed that they were the current outstanding criminal matters the father was facing.
It was agreed that the three older children in accordance with their wishes would spend no time with the father.
It was agreed that the determination of the final parenting orders would be adjourned to a date to be listed once the criminal proceedings have been completed.
It was agreed that the father would only spend supervised time with the children during the school holidays pending the determination of the criminal proceedings, as an interim arrangement.
SECTION 60CC(2) FACTORS
What arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of the children and each person who has care of the children
The father’s perpetration of family violence during the relationship
The mother reported to the Court Child Expert that throughout the relationship she was subjected to physical and sexual violence as well as coercive control at the hands of the father. The father denied the allegations.
There is a current ADVO protecting the mother from the father and it is an agreed fact that there are currently outstanding criminal proceedings, in addition to the charge of a sexual offence against W, for both breaching the ADVO and the allegations of threats to kill the mother.
The mother reported significant allegations of family violence and coercive and controlling behaviour by the father. Such evidence is yet to be tested. Her reports included allegations that the father behaved in a verbally abusive manner towards her, he yelled at her, denigrated her, and swore at her in the presence of the children, particularly when he was intoxicated. The mother reported that he minimised her concerns and told her that she was “overreacting” after she discovered that he posted nude pictures of her on a website, which contained pictures of her face and her location.
The mother said he behaved in a controlling manner towards her, he demanded to know her whereabouts and possibly had a tracking device in her vehicle. She was not allowed to maintain relationships with friends, she said he set curfews for her, and locked her outside of the family home, often resulting in one of the children letting her in after he was asleep. She said that he monitored her mobile phone and deleted phone numbers and photos of bruising on her body which he had caused.
The mother reported that, if he provided her with additional funds for the children’s needs, the funds were often accompanied with an expectation that she provide him with sexual favours. She alleged that, during their relationship, he behaved in a violent manner, and was physically abusive. She said he damaged her belongings during fits of anger, had smashed glass windows and mirrors in their home, had thrown mugs of hot coffee at her, and had thrown plates of food on the floor when he was dissatisfied with food she had prepared. She further said that he has slapped her, hit her, pushed her, and squeezed her wrists. She said that he has choked her several times to the point that she could not breathe, and that she has sustained bruises because of his behaviour towards her.
She said he behaved in a sexually coercive and abusive manner towards her, that he refused to have a vasectomy and forced her to have her birth control removed because she experienced additional bleeding which she said rendered her “useless” to him. The mother reported that he said “I own you; you have to do what I tell you to do” and on one occasion, he forced her to have anal sex with him when under the influence of alcohol.
In response to the allegations, when asked by the Court Child Expert the father said “it’s all laughable” and that he has been “putting up with allegations for years, ninety percent” of which “were tested in the local Court. They are just words.” He maintained his denial of the allegations.
The allegations of serious family violence, sexual violence and coercion and control have not been tested and are in dispute. However, there is some corroborative material referred to by the Court Child Expert. I have considered and given weight to the additional third party material referred to in the report in considering what orders are in the best interests of the children and in particular in considering the safety of the children.
The Court Child Expert reported that the NSW Police material, while yet to be tested in Court, made mention that there have been incidents reported from 2008 onwards, of a dynamic of family violence occurring between the parents, in which the father was identified as the perpetrator and the mother as the victim. Those documents also allege that the father engaged in harassment of the mother following their separation via telephone and her social media accounts, to the extent considered by the police to be alarming and adversely impacting the mother’s life, resulting in a contravention of the existing ADVO.
The Court Child Expert reported that the Department of Communities and Justice (“the Department”) material, while also yet to be tested, had reports that the family were known to the Department since 2008, due to allegations of family violence and excessive alcohol use of the father. The Court Child Expert records several Risk of Significant Harm (“ROSH”) reports were made in relation to the parental risk factors of domestic violence between the parents. She reported that “a caseworker contacted [Mr Gaffin] mid-2011 at which time he confirmed that domestic violence had occurred” and that the caseworker “also noted that [Mr Gaffin] seemed to lack insight about his behaviours and the impact it has had on [Ms Bead] and the children.” I repeat again that I note that the allegations whilst recorded have not been tested, but I take into account that they have been reported.
U told the Court Child Expert the father ““beat” him, his older maternal sibling [Mr G] and [Ms Bead] regularly with his belt, knuckles, fist and/or a […]bat”. He said that he and his siblings observed the father physically abusing the mother and that he knew to “stay away” because “if we got involved, we would get a bashing.” He reported the father raised his voice and his behaviours would at times escalate to further yelling and harassment, breaking their belongings, such as gaming consoles and/or violence.
V reported that the father “criticised his weight; would drink to excess; refused to help with household chores; swore and became violent towards him, his siblings, and [Ms Bead].”
W told the Court Child Expert “it makes me feel sick to the stomach at the thought of seeing [Mr Gaffin]”.
Y reported to the Court Child Expert that the father:
…drinks a lot of alcohol and smokes a lot. When he gets really angry, he grabs me on the arm and grabs me around my throat or covers my mouth. He grabs me when I'm angry. I feel angry and sad and want him to stop but he doesn't.
Y further said that he feels afraid of the father when the father screams at him or others in the house, and when the father becomes physically abusive.
Y also reported to the Court Child Expert that the father punched him in the stomach because he was “angry and drunk”, twisted X's arms and “threw” X, however, he could not recall when this occurred. He also said the father was drinking alcohol while driving Z to hospital after Z had injured himself.
Z said the father can be “mad or happy Dad. When we are naughty, he gets mad”. Z also said during these occasions, the father swears at them and points his finger. He also said “When not naughty, him happy.” X reported similarly, concerns in relation to the father.
The Court Child Expert formed the view that the reports of both the older and the younger children were unlikely to be influenced by the mother, but rather came from their lived experience. That opinion has not yet been tested by way of a final hearing.
While this is an interim proceeding and the evidence cannot be tested, it equally cannot be ignored in the context of the current application. The history of alleged family violence is corroborated by the reports made by the older three children who the Court Child Expert opined were unlikely to be influenced by the mother and were reporting their lived experience. Concerns of family violence have also been reported by NSW Police and the Department.
In this case there are competing contentions about the risk to children. This is an interim hearing where the allegations cannot in this context be fully tested. However, the allegations of risk that have been reported are serious and cannot be ignored as being impossible to resolve within the confines of an interim hearing simply because they are untested. The Court must consider each of the allegations of risk or safety that are raised.
As was observed by the majority of the Full Court in SS v AH [2010] FamCAFC 13 at [100]:
Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
As said by the majority of the Full Court in dealing with the immediate welfare of the three younger children in this matter, I cannot simply ignore the assertions because the father denies them.
The third-party reports including the Court Child Expert reading and referencing the Police records and the Department records corroborate the mother’s complaints of family violence and alcohol misuse. Each of the six children reported to the Court Child Expert with some specificity, details of the father’s alleged violence and poor parenting practices as well as his consumption of alcohol and behaviour toward them when intoxicated. This evidence supports me adopting a very cautious approach in relation to assessing the orders that are in the best interests of the three younger children.
Sexual abuse allegations with respect to W
There are very serious criminal charges pending which allege the father intentionally sexually touched W when she was nine years of age. The father has been charged with this offence and this is the reason the final hearing of the parenting matter has been adjourned.
There has been no testing of the evidence and no findings can be made until that occurs, however the complaint has been made and the NSW Police must have formed a preliminary view following investigation that there was sufficient evidence at least to lay charges.
The mother unsurprisingly cites the charges as a basis for her now setting out the concerns for the safety of the three younger children in his care for longer periods.
The mother was aware of the allegations prior to the father being charged. Counsel for the father observed that the mother was aware of the complaint at the time that she filed her trial affidavit and her case outline and notwithstanding her awareness she was proposing that the grandparents supervise time with the children on a week about basis during the school holidays. He submitted that to now contend that the longer periods of time posed a risk to the safety of the children could not be maintained in reality, because nothing has changed other than the father being charged with the offence.
Although he acknowledged that the mother’s own evidence was she felt she had no choice but to comply with the existing orders, he contended that her position of filing documents in these proceedings which still sought that the father spend supervised time in alternate weeks in the school holidays was inconsistent with her now articulated concern that anything more than the daytime periods was a risk to the safety of the children. I do not accept that contention.
There is one thing that has changed, and that is that the NSW police have now proceeded to charge the father, as I say on the basis that they must have formed a preliminary view about the evidence. I note however that these allegations are untested, but I cannot ignore the fact that charges have been laid and the late breaking event of the father being charged warrants a parent revisiting the orders that would best promote the safety of the children. I also note the ICL seeks orders for more limited and supervised time after consideration of all of the material the ICL has had access to, and that the mother has adopted the ICL’s proposed orders.
The father’s perpetration of family violence after separation
The mother alleges ongoing family violence after separation and contended to the Court Child Expert that him retaining the children was further behaviour that was coercive and controlling. The circumstances of the father retaining the children however are also dispute. This is not a matter about which I can make a finding on an interim basis.
An ADVO was put into place in early 2023 for a two-year period following the father’s alleged breach of ADVO by sending 14 consecutive text messages in early 2023. That behaviour at least is post-separation.
The father’s alcohol use
It was contended that the father’s alcohol use posed a risk to the safety of the children. The mother reported to the Court Child Expert that the father drank to excess on a daily basis, exacerbating his violent and aggressive behaviours, and that the paternal family are heavy drinkers which previously made it challenging for him to change such behaviours. She expressed concern that his alcohol abuse was ongoing and impacting X, Y, and Z. The mother expressed that the father only submitted to carbohydrate-deficient transferrin (“CDT”) testing and waited for the end of the testing period, which she believes influenced his alcohol test results. I was not taken to the CDT test results in the evidence relied upon by either party.
The father told the Court Child Expert that he does not use illicit substances. He also said that he is a social drinker and “finds these questions (regarding his use of alcohol) hilarious” because this issue has been discussed at length during parenting proceedings. He said he “enjoys a beer and a pie” while watching the football. He said as a condition of his employment, he is breathalysed on a daily basis, and he is not permitted on site if there is a positive reading. He said that he is unsure if further alcohol testing was ordered by the Court or requested by the mother, however, he said that his use of alcohol “can’t be too much of an issue” for her if she requested the children live with him. He denied allegations of drink driving stating, “I don’t have much to say, I haven’t been caught by police, I work in construction, I have had CDT testing”.
The evidence relied upon in support of the submissions that the father’s alcohol abuse posed ongoing risk to the children references the reports made by the children to the Court Child Expert. It is important to note that the younger three children at the time of the initial meeting with the Court Child Expert, were living with the father and not the mother and had spent little time with her.
The Family Report at [5] noted that:
[X] and [Y] spoke negatively of Mr [Gaffin’s] use of alcohol and the way he treats them. They asked several times to go home from the assessment with Ms [Bead] and appeared distressed when this could not occur.
X reported to the Court Child Expert that the father “normally goes outside and drinks beer most night” and “he drinks big bottles on the weekends. When he drinks, he lets us stay up late and his voice changes. He talks a bit weird. Kind of like a deep voice”.
Paragraph 115 of the Family Report goes on to say:
[X] said that [Mr Gaffin] tells him to “toughen up” if he is feeling sad or worried. He also said that “sometimes it feels like he doesn’t really care if I’m feeling sad. Or he ignores me. When I bring Mum up (in conversation) he normally doesn’t like us talking about Mum”. [X] said that, if he could change something about [Mr Gaffin], it would be that he stops drinking alcohol. He recalled that [Mr Gaffin] “used to hit Mum when he was drunk, and I didn’t really feel safe”. He also said that [Mr Gaffin] “got mad” at [Ms Bead] if she did not make “the right sandwich”.
[X] also expressed fear of the father when he drinks a lot.
[Y] reported that the father:
…drinks a lot of alcohol and smokes a lot. When he gets really angry, he grabs me on the arm and grabs me around my throat or covers my mouth. He grabs me when I’m angry. I feel angry and sad and want him to stop but he doesn’t”. [Y] said that he feels afraid of [Mr Gaffin] when [Mr Gaffin] screams at him or others in the house, and when [Mr Gaffin] becomes physically abusive…
When asked if he could change anything about the father, Y said that he wishes he would stop drinking, smoking, and that he would be happy.
Z reported to the Court Child Expert that the father “always hurt us. He even drink on the way to the hospital. He drank many bottles each day”.
Again, while the allegations of the father’s excessive alcohol consumption and conduct when intoxicated have not been tested, the reports made by the children to the Court Child Expert at a time they lived with him cannot be ignored. I note the father’s denials as to the alcohol consumption as alleged, but the mother’s allegations are corroborated by the children’s reports to the Court Child Expert as to his conduct when intoxicated and are corroborated by reference made by the Court Child Expert to police and Department material. In the Statement of Facts in respect of the allegation of a sexual offence against W, it is alleged that she reported to the police that her father was then drinking.
I was urged by the father’s counsel to find that the children had been influenced by the mother to make complaints and they have in effected sided with the mother and any reports should be given little weight, at least on an interim determination. I do not accept that submission. The children were initially interviewed after they had spent virtually no time with the mother from May until December, other than on the father’s evidence, when they spent a week with the mother during the July school holidays. Although the second time they were interviewed they had then been then living again with the mother, their initial reports raised the alcohol misuse, violence and conduct issues that were also complained of by the mother. It is persuasive that the younger children’s reports were also consistent with the reports made by the older children when they had been living with the father.
The father’s alcohol consumption has been reported as a significant factor in the alleged family violence experienced by the children. It is supported by the children’s reports and other records.
The father’s mental health
The mother’s evidence is that the father often threatened self-harm during the relationship, increasing in frequency when consuming alcohol. These allegations are also in dispute and there is no capacity to make any finding of these matters on an interim basis.
Any views expressed by the children
The views of the three eldest children were unequivocal. They wished to spend no time with the father. They expressed strong views to the Court Child Expert in relation to their wishes and their lived experiences in spending time and living with him. They all expressed a view that the mother is supportive, caring, and loving. The observations of the children with the mother caused the Court Child Expert to opine that “it is likely they share a close and positive relationship.” Consent orders were made for the three older children to spend no time with the father. Those orders are in the children’s best interests.
The three younger children all reported feeling safe with their mother and expressing a strong desire to live with her. There was very little evidence however in respect of the wishes of the younger three children as to the time that they wished to spend with their father. I was taken to certain parts of the evidence and parts of the Family Report by both parties and by the ICL and asked to infer from the evidence what the wishes were about time.
There is some direct evidence as to the wishes. At [118] of the Family Report the Court Child Expert records that X “seemed unsure about the time, if any, he would like to spend with [Mr Gaffin], stating “maybe a day in the local area. I don’t want to drive to [City B]”. He went on to say that he would feel sad if the Judge made a decision that was contrary to his wishes.
At [125] of the Family Report, Y was reported as saying “I don’t want to stay with Dad and [Ms H]. [J] hit me for no reason. She has kicked me and bitten me. She is only eight!” however this appears to be in response to a question about with whom he would like to live.
Z told the Court Child Expert that he wanted to live with the mother and talk to the father on the telephone and see him on weekends and holidays. Z also expressed concern about how the father would respond to his comments, saying that he “may get mad at me”.
Y reported to the Court Child Expert “I want to be with Mum. I didn’t want to be with Dad this long” and that he said he would feel “confused if the Judge made a decision that was contrary to his wishes because “Court is normally nice”.
Z reported to the Court Child Expert that, if the Court ordered he live with the father, he would “run away and go to Mum.”
I cannot make findings or put significant weight on the evidence as to the wishes of the children as to the time they may wish spend time with the father for the purposes of this interim determination. This is because the focus of the wishes expressed were mostly about the parent with whom they wished to live, other than X who considered and articulated his wish to spend time with his father “maybe a day in the local area.”
The developmental, psychological, emotional and cultural needs of the children
X has been diagnosed with a medical condition. The mother took him to the general practitioner. She said that X developed this condition and he may require a blood test to determine if there is an underlying issue. The explanation as to the genesis of this condition cannot be tested and I give no weight to the suggestion that it arises as a consequence of stress.
Y has traits of autism spectrum disorder and of the children he is very emotional and has sometimes difficult behaviour. Y also has a genetic condition.
In mid-2020, Z suffered a traumatic medical episode. His recovery is ongoing and he requires therapy. The mother says that his cognitive developmental and motor skills appear to be progressing well. Z also still suffers from a symptom as a result of a previous injury.
The father relied upon his affidavit at [140] that refers to the time the children previously spent with the paternal extended family over the Christmas and Easter periods. The father’s evidence was that the children having a strong relationship with the paternal extended family, and that the paternal grandparents regularly assisted the mother with the care of the children and attended their school and sporting events. It was accepted by counsel for the father that there was no relevant time frame referred to, but it appeared that this evidence was in relation to conduct that was prior to the parties’ separation.
I infer however, given the mother’s application is for the three younger children to spend time with the father supervised by the paternal grandparents, that she sees a benefit in the relationship between the children and the father continuing and she considers that the paternal grandparent’s presence ameliorates the concerns as to the children’s safety, that would exist if they were solely in the care of the father.
The Court Child Expert’s observations of the three younger children at the end of the interview raises some concerns about the father’s capacity to attune to their emotional wellbeing, which is one of the factors that I must consider under the Act. The Court Child Expert observed that:
…the children’s expressed grief and loss seen at the conclusion of the assessment process, as well as their attempt to mask such feelings from [Mr Gaffin] may also speak to the children’s understanding of [Mr Gaffin’s] and [Ms H’s] tolerance for their emotional wellbeing, and his feelings and/or views of [Ms Bead].
Indigenous culture and connection to the paternal family
The ICL raised that the father is a First Nations man and that it is important that the children spend time with him to ensure that they retain connection to the paternal family and their culture. The father reported to the Court Child Expert that he said that he identifies as “Aussie” with some First Nations people of Region L. He said that a lot of his First Nations heritage is unknown and is being investigated by his aunt.
The mother reported to the Court Child Expert that the children are not officially identified as First Nations but she had requested documentation from the father about their First Nation heritage but “he has refused to hand over information” and therefore she is unsure of his sources. However, she told the Court Child Expert that she is supportive of the children’s choice to explore and identify as First Nations.
First Nations heritage is undoubtedly an important factor to be taken into account in the determination of matters involving competing applications for parenting orders of First Nations children. As identified by the Full Court in the decision of B and R and the Separate Representative (1995) FLC 92-636; [1995] FamCA 104, the unique experiences and cultural significance of connection to family for first nations children must be considered in making orders that are in their best interests.
However, other than the ICL raising in oral submissions the father’s First Nations heritage, I was not taken to any evidence nor were submissions made that this was a factor that should be given weight in support of these particular interim orders sought at this time. I note however, that on both parties’ proposals and that of the ICL, the paternal grandparents are to supervise the father’s time and this ongoing time and connection to the paternal family by way of the interim orders will ensure that the children continue to maintain the connection to the father’s family, and I infer, will continue to maintain a connection to their First Nations culture.
The capacity of each person who has or is proposed to have parental responsibility for the children to provide for the children’s developmental, psychological, emotional and cultural needs
The Court Child Expert reported that the mother provided a detailed account of the children and their needs as she sets out in the Family Report. The children were interviewed and each spoke warmly of a close and loving relationship with their mother who provided them with support and safety.
U described his father as “an abusive alcoholic” and as the person who caused him to feel sad and worried in the family. He firmly believed the father was “not going to change,” and he did not consider him to be a parent because “he never did anything” to care for him, his siblings, or the mother.
U explained that he has lived with the mother since his parents’ separation and attended one supervised visit with the father. U described the father as “rude, ungrateful, and increasingly intimidating and aggressive towards him during this visit”. By contrast his experience was that his mother “makes him laugh, is a fun person to be with, and engages with him in a calm and loving manner, never raising her voice to him regardless of the stress she must manage”.
V reported the father drinking alcohol every night, smoking and becoming increasingly angry. He recalled an occasion when he and the father were sitting together and the father “was so drunk he couldn’t talk properly, and he was messaging Mum about the boys”. V described the father as “dominant and dismissive of his views”, particularly when he expressed wanting to return to the mother’s care. He feared the father when he drank and became aggressive. He also said that he did not “get involved” with the father of an evening and went to bed early “so I wasn’t a target to him”.
W said, “it makes me feel sick to the stomach at the thought of seeing [Mr Gaffin].” The Court Child Expert noted that at times during the interview, W fidgeted, possibly as a coping mechanism for discussing emotionally charged topics. She said that she and U attended one supervised session of time with the father, and the father and U “got into a fight”. She said the supervisors intervened because the father “had that much rage in his eyes.” She said that she felt afraid of him most nights because he was verbally abusive, aggressive, and breaking beer bottles while she tried to go to sleep.
X said that the father “normally goes outside and drinks beer most nights” and “he drinks big bottles on the weekends. When he drinks, he lets us stay up late and his voice changes”. He recalled that the father “used to hit Mum when he was drunk, and I didn’t really feel safe”. He also said that the father “got mad” at the mother at times.
When X was asked if he currently feels safe, he said that he feels scared when the father yells at Ms H, when she is “being smart” and J, when she is “being naughty” and he does not like it. He further said that the father has grabbed his arm and thrown him which has hurt him a lot. He mentioned that whilst he cannot recall when this occurred, he “forgot to tell [Ms K]”, meaning Court Child Expert at the time. He said that he had a red mark on his arm and indicated that the paternal family “did not do anything”. He said that he feels afraid of the father when he “drinks a lot”. X said that normally the father and Ms H have a good relationship, however, when they have argued, X is concerned that the father may hurt Ms H in the same way he hurt the mother.
Y reported to the Court Child Expert that when he has asked to go home to the mother the father said that he will not be driving him he will have to walk back. He also said “I asked to call Mummy on the phone and apparently, she never answers. She is meant to call us”. Y went on to say that the father has called him a liar, however, “he ([Mr Gaffin]) is lying about Mum. I never lie and still don't” is what he said. Y said that if he could change anything about the father, it would be that he stops drinking, stops smoking and is happy.
Z said that he does not wish to talk to the father on the telephone, stating that “he always hurt us”.
The report made by the children of the father’s anger, alcohol misuse and frequent intoxication and his lack of attunement to the children as reported by them all individually, together with the concerns opined by the Court Child Expert, raises concerns as to the father’s capacity to provide for the developmental, psychological and emotional needs of the children. The reports of each of the older children align also with the reports of the younger children.
However, the father squarely contends that the children have been influenced by the mother and that is the explanation for the reports they make. As referred to earlier in these reasons, this is an interim hearing where the evidence has not been fully tested. I however give weight to the consistent reports of all six children of the behaviour that they say they were exposed to and to their perception that it occurred often when the father was intoxicated. Additionally, as I have referred to before, the third-party records from the NSW Police and the Department referenced by the Court Child Expert, also form the basis for her expressed concerns. Despite it not yet being tested, I give weight to her opinion given the information to which she has had regard.
The benefit to the children of being able to have a relationship with their parents, and other people who are significant to them, where it is safe to do so
The mother has been the primary caregiver for the children for the overwhelming majority of their lives, including after separation. There is no contest that there is a benefit to the children in continuing that relationship with her, and the evidence and observations of the Court Child Expert support such a finding on an interim basis. It is also not contested that they should remain living with their mother.
The oldest three children described having a poor relationship with the father. The younger children all expressed a clear desire to live with their mother but with mixed expression as to the relationship with their father.
The Court Child Expert noted, in relation to her observations of the younger children with the father, that they were reluctant to participate in observation with him and his partner but nonetheless attended with some encouragement. The Court Child Expert noted that:
Whilst the children, for the most part, appeared to interact more calmly [Mr Gaffin] and [Ms H], their expressed exuberance appeared to be less tolerated by [Mr Gaffin] and [Ms H]… the children’s expressed grief and loss seen at the conclusion of the assessment process, as well as their attempt to mask such feelings from [Mr Gaffin] may also speak to the children’s understanding of [Mr Gaffin] and [Ms H’s] tolerance for their emotional wellbeing…
The father's counsel contended that the Court should find that the children have spent time in the past and there was evidence to support the making of the orders now sought to spend time with the father and the paternal family for the blocks as proposed. He took me to a passage in the father's affidavit sworn 30 July 2024 in support of that contention, that such time is in the children’s best interests. Paragraph 140 says:
For Easter and Christmas each year, l would take the children to visit their paternal extended family and spend time together in an onsite caravan in [Town F]. The children have a strong relationship with their paternal extended family. The children's paternal grandparents regularly assisted [Ms Bead] with caring for the children and attended the children's school and spotting events. Prior to living in [Town F], my parents lived close to our household in [Town M] and later in [Town N]. From late 2011, [Ms Bead], the children and I lived with my parents for 18 months.
The evidence referred to periods of time well before separation and his evidence goes on to detail his involvement with the children's sport and other activities, including the involvement he had with U, V and W. He asserts that the children have a strong relationship with the paternal extended family and that they previously spent time in an onsite caravan at Town F. There is no evidence however of any more recent relationship with the paternal grandparents.
Contrary to the submission of the closeness of the relationship of the three older children to the paternal grandparents, they told the Court Child Expert that they have no relationship with the paternal family, other than W who reported she had in the past a close relationship with the paternal grandmother, but no longer has. I was not taken to any evidence that would support a finding in respect of the current relationship of the paternal grandparents and the three younger children.
The highest I am able to take the evidence and noting the agreed position as to their role as supervisors, is that the children having spent time with the paternal grandparents should continue to spend time with their father supervised by the paternal grandparents during which they are able to maintain their relationship.
The mother’s own proposal is that they are suitable supervisors to spend with the children and that they mitigate the safety issues she raises. I also infer from the paternal grandparents’ presence in Court that they are supportive of their son and of his desire to maintain contact with the children.
I was taken to an affidavit of the paternal grandmother on the basis that it identified a number of difficulties with communication between the mother and the children while the children were living with the father. The contention was that on a number of occasions the mother called the paternal grandmother to speak to the children and on a number of those occasions the paternal grandmother did not have her mobile phone on her. The paternal grandmother’s evidence was that she did miss some calls from the mother but on most occasions, she facilitated a telephone or video call between the mother and the children later that same day.
It was contended by the father’s counsel that the difficulty in communication during this time was as a consequence of the father fearing another breach of ADVO. That may explain his reticence to communicate, and this is a matter also to be tested at final hearing.
The Court Child Expert observed that the children were upset and confused by the lack of contact with their mother during this time. This is illustrated by the comments from the children as set out in the Family Report. At [113], it is recorded that “X said that he has asked to call Ms Bead, however, Mr Gaffin said that “she has to call us”. He also said that it was said “[Ms H] and Dad said who knows what your mother is going to do” and that X further said that, following the initial Family Report assessment, he asked to see the father’s phone because “Mum said she was calling us”. He indicated that the father had lied to him because the mother had showed him the missed calls and messages, she had sent to the father.
Y who was eight years of age said to the Court Child Expert at the first interview that he had questions to ask, such as “is this right? Is Mum supposed to call us? or are we supposed to call them? Dad said Mum hasn’t responded about Christmas holidays.”
While again this evidence is not yet tested, it is what was reported by the children to the independent Family Report writer, and those reports support a finding that whatever the reason for the poor communication, there has not been easy communication between the mother and the younger children during periods that they were in the extended care of the father. It is also not in doubt that the children were confused by this and had questions as to why communication was not occurring when they were in the care of the father.
The mother gave evidence that the child W recently reported extreme concern when the younger children were spending time with the father. She reported that when they stayed over with him, she was so stressed that she was self-harming and cutting her hair. Her extreme response to the concern as to the welfare of her younger siblings is concerning. If as the father contends the mother has brainwashed the children and the allegations are untrue, the damage to the psychological health of the children is significant. If however the issues of risk are as contended by the mother, and are as reported by the children to the Court Child Expert, and as noted in the police and the Department records and include family violence, sexual violence and alcohol abuse in the presence of the children, the risk of the children being exposed to such conduct for a week at a time during the holidays is significant. That risk is too great.
Until the evidence is tested I cannot make a finding as to the genesis of the reported concerns and behaviours but the risk of harm to the children is serious and a cautious approach is warranted.
For these reasons a cautious approach that maintains a relationship is in all the circumstances is appropriate. Time as proposed by the ICL maintains time being spent on the Saturday and Sunday on two consecutive weekends during the school holidays. It accords also with the wishes that were expressed of spending time for shorter periods which I refer to earlier in these reasons. It also maintains the relationship with the paternal family until the allegations of serious criminal conduct are tested and it protects the children from exposure to the behaviours that have been alleged that they have been exposed to, those allegations being made by the older children who are spending no time, the younger children and by the mother.
There was no evidence from the father as to when the criminal charges would likely be listed and determined. The arrangement that I now order will remain in place pending determination of the outstanding charges.
Anything else that is relevant to the particular circumstances of the children
Submissions were made as to the impact on the parties of the travel required by the father to spend time. It was agreed that the father lived approximately two hours from the mother and that the paternal grandparents live in Town F, almost four hours’ drive from the mother.
The mother has the care as a single parent of six children of this relationship and an 18‑month‑old child from her subsequent relationship. She is a stay-at-home single mother on Centrelink benefits. She receives some practical support from the paternal grandfather of the 18-month-old child. I accept the submission that the burden on her of travel would be significant both financially and due to her caring responsibilities.
The father lives with his new partner with whom he has another child, Ms O born in 2022. He however is in a different situation as he has both the support of his new partner and his parents. He is also employed and it was contended from the bar table by his counsel that after payment of child support of $166 per week he has a surplus of around $1,100 per week.
Taking into account the financial and caring responsibilities of the parties it is in the children’s best interests that the father, and his parents or either of them, undertake the travel for the interim arrangements during the school holidays.
CONCLUSION
There are very serious issues of safety identified in the Court Child Expert’s report as identified earlier in these reasons. The issues from the allegations of family violence allegedly experienced by the mother and the children cause me to adopt a cautious approach to interim orders that I am making.
The father has been charged with a serious charge of a sexual offence against the parties’ child W that is being prosecuted by NSW police. This is also a factor that warrants a cautious approach to future orders being made.
The benefit of this caution, as urged by the ICL, is that the children spend time with and maintain a connection to their paternal family, but the identified risk of being exposed to behaviours, is ameliorated by limiting that time to the four days in each school holiday period being the first and second Saturday and Sunday during the day of each school holiday period, as supervised by the paternal grandparents.
The wishes of Y were that he spends daytime locally with his father and I give some weight to that wish given his age and the fact that he expressed that wish to the Court Child Expert.
I also give weight to the extreme reaction from W who recently expressed such worry about the safety of her younger siblings arising from the complaint she made to police.
This matter should be determined as soon as the criminal proceedings are finalised. I will retain this matter in my docket and once the criminal matter is concluded list it on short notice before me. To that end the father’s lawyer should advise the parties and the ICL of the conclusion and outcome of the outstanding criminal proceedings. The matter is going to be listed for mention before me in May of 2025 but can be re-listed earlier in the event there is some other development.
I certify that the preceding one hundred and fifty-six (156) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Curran. Associate:
Dated: 15 November 2024
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