Chapman & Fletcher
[2023] FedCFamC1F 4
Federal Circuit and Family Court of Australia
(DIVISION 1)
Chapman & Fletcher [2023] FedCFamC1F 4
File number(s): BRC 10325 of 2016 Judgment of: JARRETT J Date of judgment: 11 January 2023 Catchwords: FAMILY LAW - CHILDREN – With whom a child lives – Where there was a previous application for a short-term custody order to the Chief Executive – Where the application for a short-term custody order was refused – Where the applicant was found a parent willing and able to care for the child – Where the second respondent is the child’s foster carer – Where the child has a good relationship with both the applicant and second respondent – Whether the applicant is capable of meeting the child’s physical and emotional needs – Where the evidence suggests the applicant can meet the child’s physical and emotional needs – Where a change of residence is ordered Legislation: Family Law Act 1975 (Cth) ss 60CC(2)(b), 60CC(3)(m) Cases cited: Agambar & Agambar [2021] FedCFamC1A 1
Aldridge & Keaton (2009) FLC 93-421
Maldera v Orbel (2014) FLC 93-602 at [79]– [81];
Valentine & Lacerra (2013) FLC 93-539
Division: Division 1 First Instance Number of paragraphs: 121 Date of hearing: 6 July, 2022 Place: Brisbane Counsel for the Applicant: Litigant in person Counsel for the First Respondent: Litigant in person Counsel for the Second Respondent: Mr Cahill Solicitor for the Second Respondent: Genuine Legal Counsel for the Independent Children’s Lawyer: Mr Hodges Solicitor for the Independent Children’s Lawyer: Barbara Fox Solicitor ORDERS
BRC 10325 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR CHAPMAN
Applicant
AND: MS FLETCHER
First Respondent
MS PENNEL
Second Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
JARRETT J
DATE OF ORDER:
11 January 2023
THE COURT ORDERS THAT:
1.All previous parenting orders are discharged.
2.The applicant and the first respondent have equal shared parental responsibility for decisions concerning the major long-term issues for X born 2015.
3.Commencing upon the making of these orders, except as otherwise provided in these orders, X shall live with the applicant.
4.X shall live with the first respondent at all such times as shall be agreed between the applicant and the first respondent, and failing agreement each alternate weekend (commencing on the second weekend following the making of these orders) from 9.30am on Saturday until 4.00pm on the next day save that:
(a)should Father’s Day fall on a Sunday on which X is to live with the first respondent pursuant to these orders, his weekend time with her on that weekend shall be suspended and replaced by time on the following weekend; and
(b)should Mother’s Day fall on a Sunday on which X is to live with the applicant pursuant to these orders, his weekend time shall occur on that weekend and his time with her on the immediately following weekend shall be suspended.
5.X shall spend time with the second respondent at all such times as shall be agreed between the applicant, the first respondent and the second respondent, and failing agreement every fourth weekend (commencing on the fourth weekend following the making of these orders) from 9.30am on Sunday until 3.00pm that same day, save that in the event that the time provided for in this order falls upon:
(a)Christmas Day;
(b)Good Friday and Easter Sunday;
(c)X’s birthday;
(d)The applicant’s birthday; or
(e)The first respondent’s birthday
time on that Sunday shall be suspended in its entirety and make up time shall occur on the immediately following occasion X lives with the first respondent pursuant to order 4 hereof.
6.Unless otherwise agreed in writing with the applicant, the first respondent may telephone X each Wednesday evening and may initiate the call at any time between the hours of 6.30 and 7.30pm. The applicant shall forthwith provide to the first respondent a telephone number upon which she may call X. The applicant shall ensure that X is available to take the call.
7.Unless otherwise agreed in writing with the applicant, the second respondent may telephone X each alternate Thursday evening (commencing on the second Thursday following the making of these orders) and may initiate the call at any time between the hours of 6.30pm and 7.30pm. The applicant shall forthwith provide to the first respondent a telephone number upon which she may call X. The applicant shall ensure that X is available to take the call.
8.Unless otherwise agreed in writing between the applicant and the first respondent, changeover for the purposes of X living with the first respondent pursuant to order 4 hereof shall take place by the applicant delivering X to and collecting him from the first respondent’s residence.
9.Unless otherwise agreed in writing between the first respondent and the second respondent, changeover for the purposes of X spending time with the second respondent pursuant to order 5 hereof shall take place by the second respondent collecting X from and delivering him to the first respondent’s residence.
10.The applicant must keep the first respondent informed of X’s residential address, the address of his school and the identity and address of each of his treating health carers. In the event of a change to them, the applicant must notify the first respondent of the change within seven (7) days of the change occurring.
11.The first respondent must keep the applicant and the second respondent informed of her residential address. In the event of a change to that address, the first respondent must notify the applicant and the second respondent of the change within seven (7) days of the change occurring.
12.Otherwise all outstanding applications and responses are dismissed.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J:
This case concerns the parenting arrangements for one child, X who is seven years of age. X does not presently live with his parents – the applicant (his father) or the first respondent (his mother). He lives with the second respondent and her husband. They are foster carers with whom X was placed by the Department of Communities some years ago.
Briefly, the applicant seeks an order that X lives with him. The first respondent seeks an order that X lives with her. The second respondent seeks an order that X continues to live with her.
The issues
It is uncontroversial that X has some special needs arising out of his health. The nature and extent of his health concerns and the needs that they create for him are a matter of some dispute. However, it is those needs, whatever their extent, that inform the issues in this case. Counsel for the independent children’s lawyer framed the issue as: which of the parties is best able to meet X’s needs, both physical and emotional. Counsel for the independent children’s lawyer submitted that the second respondent had demonstrated a capacity to meet those needs for X, whereas the applicant had not. In that sense, it was suggested that the applicant presented a risk to X in that he may not be able to deal with X’s needs and particularly those arising from his health.
The independent children’s lawyer also submitted that the first respondent did not have the capacity to properly meet X’s needs.
Counsel for the second respondent adopted much of what counsel for the independent children’s lawyer said in terms of the issues in the case. He submitted that a “large concern” for his client was that X would not be permitted to spend any time with her and her husband should he live with the applicant. Further, he argued that the applicant had not seriously planned for X to live with him and had little insight into his needs – his health needs and educational needs, and so his capacity to meet X’s physical and emotional needs would be found wanting. Most importantly, counsel for the second respondent confirmed that his client’s case squarely focused on the proposition that if X lived with his father, he would not have his medical needs met.
The Proposals
These proceedings were originally fixed for a trial to commence on 28 March, 2022. For reasons that are no longer important, the trial did not proceed on that day. It was adjourned for final hearing to commence on 6 July, 2022. An order was made that permitted the parties to file one updating affidavit no later than 22 June, 2022. No party filed updating material in accordance with that order, although the second respondent filed an affidavit about a week later. It went well beyond what was authorised by the order permitting further material and I refused the second respondent leave to rely upon it.
The applicant filed no case outline as directed by the court (either for the purposes of the initial trial date or subsequently). Consequently, at the commencement of the trial I asked him about the orders that he sought the court to make. He informed me that he sought an order for sole parental responsibility for X. He also sought orders for X to live with him and for X to spend time with the first respondent each alternate weekend from 4.00pm Friday afternoon until 4.00pm Sunday afternoon. He proposed that he would do all travel to enable that to happen because the first respondent does not have a driving licence. He proposed that X also spend one half of all school holidays with the first respondent.
In the course of cross-examination by counsel for the independent children’s lawyer, the applicant changed his position about the amount of time the X should spend with his mother. Ultimately he argued that X should spend time with her only once per month, daytime only and away from her household. He also agreed with counsel for the independent children’s lawyer that he and the first respondent could have equal shared parental responsibility for X because the applicant agreed with counsel that he (the applicant) thought that he and the first respondent could make decisions together, for example in relation to X’s health.
The applicant also told me that X should spend no time with the second respondent. That proposal is at odds with what he set out in his affidavit of evidence-in-chief filed on 18 March, 2022. In that affidavit he proposed that X should spend regular time with the second respondent.
The first respondent filed a case outline on 14 March, 2022 for the purposes of the previous attempt to hold a trial. She confirmed to me that the orders she sought in that case outline remained her proposal. In that case outline, she seeks an order that she have sole parental responsibility for X, that he live with her and that he spend each alternate weekend from 9.00am Saturday until 4.00pm Sunday with the applicant. She proposes that he also spend four days in each school holiday period with the applicant. She proposes that X should spend one Saturday each month from 9.00am to 4.00pm with the second respondent. However, in cross-examination by counsel for the independent children’s lawyer, the first respondent said that X should spend every second weekend from Saturday morning until Sunday afternoon with the second respondent, unless it is a long weekend (in which case presumably it should extend to the conclusion of the long weekend), and half of the school holidays. She also suggested that X should spend every third Christmas with the second respondent and her husband.
The first respondent also changed her position with respect to the applicant and the time that X should spend with him. She told counsel for the independent children’s lawyer that X should only spend one weekend a month and four days out of the school holidays with the applicant.
The first respondent also told me at the commencement for the trial that if I was not attracted to her primary proposal, she agreed with the orders proposed by the independent children’s lawyer, save that X should spend each alternate weekend with her rather than one weekend per month.
In her case outline filed on 24 March, 2022 the second respondent seeks orders that she have sole parental responsibility for X, that he live with her and that he spends the second and fourth weekend of each month from 10am Saturday to 3pm Sunday (and if the weekend falls on a long weekend the time shall extend to 2pm on the Monday following the public holiday) with the applicant. She further proposes that X spend the third weekend of each month from 10am Saturday to 3pm Sunday with the first respondent. She proposes that X spend one half of his holidays with the applicant and time with the first respondent around Christmas Day and Boxing Day. She proposes range of other orders, including time for X with all of the parties on special days.
The independent children’s lawyer filed a case outline on 4 July, 2022. In it she proposed orders that the second respondent have sole parental responsibility for X, that he live with the second respondent and that he spend each second and fourth weekends with the applicant from 10.00am Saturday to 3.00pm Sunday, or Monday if Monday is a public holiday. She further proposes that X spend time with the first respondent on the third weekend of each month from 10.00am Saturday to 3.00pm Sunday, or Monday if Monday is a public holiday. Otherwise she proposes that X spend holiday time with the applicant and the first respondent, but less with the first respondent.
The parties
The applicant
Mr Chapman is about 40 years of age. He was born in C Town and his extended family still reside in that area. He was a keen sportsman in his younger years.
Presently, the applicant lives in B Region, Queensland. He has two housemates with whom he shares his accommodation. He does not know their surnames. The applicant has his own room, as does X when he stays with the applicant. At the time of the trial, he had been in that accommodation for about three months on an informal basis. He has no tenancy agreement with the owner of the property.
The applicant is in a personal relationship with a person who lives in City D. The relationship of is of short standing – it was only about a month old at the time of the trial.
Since leaving high school the applicant has worked at various occupations. Presently he is employed as a manager at E Venue in B Region. At the time of the trial he had been so employed for about four months. He works shift work – sometimes dayshift (from 8.00 am until 5.00pm), sometimes “mid-shift” (from 2.00pm until 11.00pm) and sometimes night shift (from 5.00pm to 3.00am). His roster changes on a weekly basis. Presently his salary is $57,000 per annum (gross). His fixed expenses seem to comprise $350 per week in rent. He, no doubt, has other expenses but there is no evidence of them.
If X was to live in the applicant’s full-time care, his evidence is that his hours will accommodate his care of X. His evidence was that he had spoken to his “venue manager” about that and he did not consider that it would be a problem. There is no other evidence one way or another.
The applicant has never been diagnosed with a psychiatric or a psychological disorder. He has no criminal history. He does not have a history of illicit drug use, misuse of prescription medication or abuse of alcohol. He has completed seven drug screening tests at the request of the independent children’s lawyer and all have been negative.
For reasons that are not immediately apparent, during the course of these proceedings the applicant was referred to “[F Psychology]” for a cognitive assessment to assess his global functioning in terms of his efficacy to parent/co-parent and provide a stable, secure, and predictable environment for X. The referral was at the behest of the independent children’s lawyer. On the evidence before me, none of the other parties were the subject of such a referral.
The applicant was assessed on 22 April, 2020 and 10 June, 2020 by Ms G, a clinical psychology registrar. I have a report from her appended to an affidavit filed on 13 July, 2020. The independent children’s lawyer read the affidavit in her case. No party sought to cross-examine Ms G.
After conducting a clinical interview and administering the Wechsler Adult Intelligence Scale, Fourth Edition, Australia and New Zealand (WAIS-IV) digital version, the World Health Organisation Disability Assessment Schedule 2.0 (WHODAS 2 .0) and a Parenting Style Questionnaire (Robinson, Mandleco, Olsen, & Hart, 1995; PSQ), Ms G concluded that:
(a)the applicant’s results on his cognitive assessment suggested he is having difficulty with perceptual reasoning;
(b)the behavioural impact of this is that the applicant may be seen to have emotional difficulties, may misinterpret body language and tone of voice, which may lead to him feeling confused at times;
(c)the social impact is that “he may have difficulty in appropriately altering his elocution of speech, and so may appear curt in response. He may have difficulty in piecing together the meaning of a conversation and miss large amounts of relevant information which is non-verbal. He may present as ‘concrete’ in his translations, expression, and outlook of the world, and he may view the world in terms of ‘black or white’. Hidden meanings may need to be pointed out to him, as he may not intuitively detect them”;
(d)the applicant’s working memory and verbal comprehension indices were in the average range, “suggesting he is able to reason and solve problems and make decisions in everyday living situations”;
(e)his results on the verbal comprehension and working memory indices suggest his overall general intelligence, which is a measure of a person’s broader diverse abilities, is average relative to peers his age”;
(f)the applicant’s score on the processing speed index was in the low average range, “indicating that he may be somewhat slower than peers his age in making quick and accurate decisions, requiring more time than peers his age”;
(g)the applicant’s results on the WHODAS 2.0 indicate that he is functioning well in society in terms of communicating and understanding, getting around, self-care, life activities, and is having minor difficulty with some participation in society due to health and financial reasons;
(h)the applicant’s results on the Parenting Style Questionnaire (PSQ) indicate that his style of parenting is Authoritative. According to Ms G’s unchallenged evidence, this style of parenting has been shown in research to provide a child with the ability to develop psychosocial maturity, cooperation with peers and adults, responsible independence, and success academically.
Ms G expressed some other opinions about the nature and extent of the relationship between the applicant and X and the perhaps the applicant’s capacity in very general sense to meet X’s needs. To the extent that those opinions are a reflection of Ms G’s assessment of the applicant’s test scores and the like, I have given her opinion weight although I have tempered that weight because Ms G has not had the opportunity to see the applicant and X together and is not privy to all of the evidence in this matter now before the court.
Overall, I assessed the applicant as a man frustrated by the notion that his son was not living with him, but rather with biological strangers in circumstances where the Department had failed in its attempt to obtain a custody order over X because the relevant court determined that the applicant was a parent able and willing to care for X. His frustration is understandable and goes some way towards explaining the apparent inconsistencies in parts of his evidence.
But this case is not about what is in the applicant’s best interests or about delivering to him what it is to which he thinks he is entitled. It is about what is in X’s best interests.
The first respondent
There is limited information before me about the first respondent. She has not placed much evidence before me about her own circumstances and there is little in the s 60G report prepared by Ms H, because the first respondent did not attend any interviews with Ms H. Despite arrangements being made on two occasions for the first respondent to attend upon the family report writer for the purposes of interviews, she failed to attend at the appointed times. She arrived late to the first session such that Ms H only had the opportunity to make a short observation of X and the first respondent together. She was unable to interview the first respondent at that stage. Alternative arrangements were made, but the first respondent did not keep them. Accordingly, what information there is before the court about the first respondent emerged from the cross-examination of her by the other parties to these proceedings.
Ms Fletcher is 36 years of age. She lives in Brisbane in a house she rents from the Department of Housing. She has lived in that house for several years. She pays around $250 per fortnight in rent.
The first respondent has a number of children. All but one are in the care of the Department of Child Safety, Youth and Women (as it is sometimes known). Her daughter J, lives with her and is presently at a local primary school. In cross-examination the first respondent agreed that in the past she has had difficulty keeping her house clean and that led to intervention by the department.
The affidavit of Ms K sworn in 2019 but read by the independent children’s lawyer in these proceedings sets out the long history that the first respondent has with the Department of Child Safety, Youth and Women. I will not recount all that is in that affidavit, but the underlying theme is that the first respondent was, for many years, unable to meet the needs of her children by keeping them safe from her violent partners and providing hygienic living conditions. Her eldest children were made the subject of a long-term guardianship order by a state child protection court in 2015. Both X and her other child J were removed from her care soon after their births, although subsequently returned. X was again removed from her care by an interim order of this court.
It seems from the evidence that the first respondent has not improved her care of her children, although she presently has J in her care. Mr L was a one-time partner of the first respondent. In March, 2022 Mr L signed an affidavit at the first respondent’s request for the purposes of the trial that was to occur in March of that year. In that affidavit he swears that the first respondent “maintains a clean household with a fully stocked cupboard and fridge”. However, for the purposes of the trial before me in July, the applicant relied upon a further affidavit from Mr L. In that affidavit deposed on 1 July, 2022 amongst other things, Mr L deposes that:
(a)he formed a relationship with first respondent in mid-2021;
(b)he moved to live with her at her address in Brisbane in late 2021;
(c)he left her in mid-2022;
(d)while he lived with the first respondent he noticed that her house was “very messy and dirty. All the crockery and cutlery in the house was left with food on, around the house and [Ms Fletcher] would collect the plates and cutlery she needed and wash them so she could use them.”; and
(e)the house was infested with mice and they lived in the stove, the walls, the couch and other rooms of the house.
To deal with the obvious inconsistencies between what he saw in his March, 2022 affidavit and his July, 2022 affidavit in the latter affidavit, Mr L deposes:
Untrue affidavit
31At [Ms Fletcher’s] request, I wrote an affidavit attesting to her mothering and housekeeping skills. However, the information in that affidavit was not accurate because it does not represent my true perception of [Ms Fletcher’s] ability to care for her children or to care for her house.
32.I believe that [Ms Fletcher] wanted me in a relationship with her in order to show herself as part of a family unit to help her to win back time or custody of [X] and to help her get released from a Child Safety supervision order that was place her poor standard of care for her daughter [J].
33.Due to the inaccuracies in my previous affidavit, I request that my previous affidavit be struck out and disregarded by the court and that this document be accepted into evidence.
When confronted about inconsistencies in cross-examination, Mr L accepted that his first affidavit was a lie.
Mr L’s most recent affidavit was not challenged by the first respondent in cross-examination and in her own cross-examination she accepted parts of Mr L’s most recent evidence and in particular that she had mice living in her house, more particularly her cooking stove. It is tolerably clear and I find that the physical conditions in the first respondent’s household, including hygiene, have not improved from the descriptions that were given by Ms K having regard to Mr L’s most recent evidence. She seems unable to effect change in her life to the advantage of X.
The first respondent is presently not employed, although earlier in 2022 she was “working during the day” in a company close to where she lived. Her evidence was that while she was working at that job she earned about $500 per week. Her employment lasted about two months. Since then she has been reliant upon Centrelink benefits for financial support.
The evidence permits of a finding, which I make, that the first respondent has very limited financial resources. Two aspects of the evidence provide a basis for this finding. First, the first respondent agreed in cross-examination that the second respondent informed her in late 2021 that X had been admitted to hospital. The first respondent said that she had not visited X in hospital because she could not afford to get there. She had no money on her “Go-card” and could not call upon any friends to drive her to the hospital. The second respondent does not have a driving license and so cannot legally drive a motor vehicle. Assuming that X would have benefited emotionally from his mother visiting him in hospital, her impecuniosity directly impacted upon her ability to meet those needs.
Second, the first respondent agreed in cross-examination that the second respondent informed her in mid-2022 that X had again been admitted to hospital. She knew that he suffered two medical conditions. The second respondent sent her a text message informing her that X had gone into hospital. However, the first respondent did not contact Ms Pennel about X until 2 days later. Her explanation for the delay was that she did not receive the text message from the second respondent because she had no credit on her mobile telephone account. She did not receive the message until her mobile telephone account was put back into credit. Again, her impecuniosity impacted upon her ability to meet X’s needs. Although the first respondent visited X in hospital on the day she replied to the message, she accepted that she had made no further enquiries with the second respondent about X’s health since he got out of hospital.
X presently spends time with the first respondent every second weekend.
The second respondent
Ms Pennel is 54 years of age. She is X’s foster carer and has been since 2018. She is married to Mr N who is presently 53 years of age. They live in Brisbane. X came into their care when he was a few months old and he remained with them until September, 2016 when he was reunified with the first respondent.
The second respondent and her husband have been married for over 30 years. They continue to be foster carers through the Department. They have their own adult son and an infant foster child that is “on an order” until late 2022.
The second respondent has not been diagnosed with a psychiatric or psychological disorder. She does not have a criminal history, nor does her husband. They have no history of illicit drug use, misuse of prescription medication or abuse of alcohol.
X
X has had a number of health concerns over his short life. He has a respiratory condition and regularly suffers respiratory episodes. He has been admitted to hospital sometimes as a result. X also suffers from a skin condition.
According to the second respondent, X is “under a specialist at [M Hospital]” and they have been trying to see the same paediatrician, however there is a six-month wait. She stated there are concerns that X may be diagnosed with a number of behavioural disorders and they are seeking a private referral to a paediatrician at P Hospital.
It is uncontroversial that X was diagnosed with attention deficit hyperactivity disorder in 2021. The applicant, however, has doubts about that diagnosis. I accept his evidence that his own general practitioner has seen X and told him that in his view X does not have attention deficit hyperactivity disorder.
X’s speech is delayed and he needs assistance to improve his speech capacity. There is a report before me that demonstrates that X has significant difficulties with his attention, focus, impulsivity, planning and organisation.
He presently attends a state primary school on the outskirts of Brisbane. He is reported by his school to have difficulties with learning but his school, on the evidence, is engaged with those matters.
some historical information
The applicant and first respondent met online and began dating in 2014.
The applicant’s evidence is that he and the first respondent separated when she was three months pregnant and he did not know about the pregnancy at the time of separation. X was born when the applicant and the first respondent were separated. The applicant’s evidence is that until he was contacted by the Department of Child Safety, Youth & Women he did not know that X had been born or that he was X’s father. Another man had been named as X’s father on his birth certificate, but when the ruse was discovered, the first respondent told the Department’s officers that the applicant was X’s father.
X came into the second respondent’s care in 2015 as a result of an assessment order made under the Child Protection Act 1999 (Qld).
A DNA test was completed in 2015 and confirmed that the applicant was X’s father. The applicant was living in C Town at that time.
The applicant commenced spending time with X under the guidance and supervision of the Department. He would travel regularly from C Town for that purpose. At this time the applicant became aware that X had medical conditions that impeded his feeding and that required corrective surgery. X regularly attended hospital.
In September, 2016 there was a trial of the Department’s application for a two-year custody order in respect of X. It is uncontentious that the court refused to make the order and considered that Mr Chapman, the applicant before me, was a person willing and able to care for X. Notwithstanding that determination, upon the failure of the application the Departmental officers returned X to the care of the first respondent – his mother. At about that time the first respondent and the Department entered into an arrangement called an Intervention with Parental Agreement in relation to X’s care.
Days later, the applicant commenced these proceedings seeking orders that X live with him and spend supervised time with his mother.
Interim orders were made in those proceedings in December, 2016 which provided for X to live with his mother and spend supervised time with the applicant and for her to comply with the Intervention with Parental Agreement in place with the Department of Child Safety, Youth & Women. An independent children’s lawyer was appointed.
Further interim orders were made in February, 2017 for X to live with the first respondent and for her to comply with the Intervention with Parental Agreement. Random drug testing of the applicant and the respondent was ordered and X was to spend time with the applicant each Saturday in week 1 and Saturday and Sunday in week 2 at the home of the applicant’s mother, Ms Q.
Thereafter followed further interim orders and an application to intervene by the second respondent in December, 2018.
The Department commenced a fresh investigation into the first respondent’s care of X and his half-sister J in May, 2019. The investigation concluded with the Department determining to take no action.
Further interim orders followed and by an interim order made on 23 February, 2020 X came to live with the second respondent and spend time with the applicant and the first respondent. Further interim orders followed altering the arrangements in some minor particulars.
the relevant matters arising under section 600CC of the Act
No party suggested that X would not benefit from a meaningful relationship with each of his parents. It was not suggested that this was a case where there would be no benefit derived by X from having a relationship with either the applicant or the first respondent. The proposals of each of the parties would see a continuation of a relationship with each of X’s parents such that he might derive whatever benefits might flow from those relationships.
I am also satisfied that he will also benefit from continuation of his relationship with the second respondent and her husband.
No party suggested that X would be at an unacceptable risk of physical, psychological or emotional harm by reason of being exposed to abuse, neglect or family violence in the household of any of the other parties. Whilst it is the case that both the applicant and the second respondent argued that X would be at a risk of neglect in the first respondent’s household, that submission was not made on the basis that there was a need to protect X from an unacceptable risk of physical or psychological harm by reason of being subjected to that neglect. That is to say no party expressly suggested that s 60CC(2)(b) was engaged in the case. Rather, submissions about neglect in the first respondent’s household were made more generally in the context of the first respondent’s overall parenting capacity.
No party submitted that this case should turn on X’s views. Ms H conducted a short interview with X on 22 March, 2021. She records that due to his young age his speech was delayed and he was unable to understand the reason why she was speaking to him. She noted that X did not refer to the second respondent or her husband as “mum and dad” and he appeared to know his biological parents. He told Ms H that he likes living with the second respondent and her husband and he also spends time with his father in B Region “and he likes this time a lot”.
Whilst the applicant gave evidence that X has said to him on many occasions that he wished to stay with the applicant and live with him, his age and the other issues in this case militate against giving X’s views any significant weight.
Ms H’s testimony demonstrates that X has a good relationship with the second respondent and her husband. During Ms H’s period of observation of X with them, she noted physical affection and enjoyment from all of the parties.
So too, she observed a good relationship between X and the applicant. She noted that X was happy and when he did well in the activities that they engaged in together, X got excited and “gave his father big hugs”. She concluded that she has no doubt that X loves his father and enjoys the time he spends with him. She concluded that X has a meaningful relationship with the applicant “and this should continue”.
In the short opportunity that Ms H had to observe X with his mother, she noted that they played together and that they exchanged physical affection. Despite this limited opportunity, Ms H concluded that X, no doubt, loves his mother.
I find that X has a good relationship with both the applicant and the second respondent and her husband. He has a relationship with the first respondent.
In terms of X’s attachments, Ms H said:
11.1 I have assessed that [X] is a young child who has spent the majority of his life in different homes and this has been very confusing for him and caused significant instability in his young life. As a result of the multiple changes to where he has lived, the quality of his care and the different people who have been responsible for his care and protection, it is highly likely that [X] now has an insecure attachment style. Children who are not afforded stability and security in their care arrangements often develop difficulties in their attachment and development.
I find that X has an insecure attachment style. No party, however, addressed me on the significance of such finding for X or the outcome of these proceedings.
The evidence demonstrates that over X’s life his parents have both spent time with him or sought to spend time with him. Despite the intervention of the Department of Child Safety, Youth & Women, X has maintained a relationship with his mother and his father and his relationship with his father is described by Ms H as “meaningful”. The applicant in particular has demonstrated a commitment to X through his involvement in the proceedings commenced by the Department and these proceedings which were commenced in 2016. He has persisted with the present proceedings notwithstanding the pace at which they have progressed through the court.
The applicant was pressed about his commitment to his son in cross-examination by counsel for the independent children’s lawyer. He confirmed his written evidence that if X is placed primarily with the second respondent he “will continue to advocate for him to live primarily with me and continue until the circumstances of the foster parents change, e.g. via illness or injury or my circumstances change and make a renewed application for primary care of my son”. The applicant is, I find, committed to the care of X and is anxious to discharge his responsibilities as one of X’s parents.
The second respondent and her husband have demonstrated a commitment to X and his care. That is in the context of them being foster carers for not just X but other children from time to time. Although there is criticism made by the applicant and the first respondent about their interactions with the second respondent, there is no criticism made about her care of, or commitment to X.
In the context of X spending most of his time living with second respondent and her husband, both the applicant and the first respondent were asked about the financial support that they provided or offered to the second respondent and her husband to help with X’s care. Neither have provided any financial support. Given the financial circumstances of each of them, that is not particularly surprising. There is no evidence that the second respondent or her husband ever sought any financial assistance from the applicant or the first respondent with X’s care. Indeed, each of the applicant and the first respondent gave evidence that they had never received such a request. I take those matters into account.
There is no evidence before me about the likely effect of any changes in X circumstances upon his relationships, including the likely effect on him of any separation from the second respondent and her husband. Despite Ms H’s extensive reference to various parts of the Family Law Act 1975 (Cth) in her report and her assessment, bordering upon legal opinion, very little consideration is given by her to the matters ordinarily the subject of a s 62G report: namely the matters set out in s 60CC of the Family Law Act 1975 (Cth).
In many parenting cases one of the critical considerations will be the effect of any changes in the current circumstances upon the child or children concerned and their relationships with those of significance in their lives. Nowhere in Ms H’s report is that considered. One might draw the inference that by reason of her recommendations, she has concluded that it would be more beneficial to X to remain in the primary care of the second respondent and her husband but just why that is so is not at all clear.
In her report, Ms H discusses the cumulative harm to which X has been exposed by reason of his living circumstances. Those living circumstances have included spending significant periods of time living with the second respondent and her husband. Just as one might infer from Ms H’s opinion that a continuation of the current arrangements is appropriate and in X’s best interests, an inference equally open that it is the current arrangements, at least in part, including the arrangements whereby X spends most of his time with the second respondent and her husband which has led to and exacerbated that cumulative harm. The letter of instruction to the report writer directed her to undertake “a Family Report to assist the Court decide what is in the best interests of the child considering those matters set out in s 60cc of the Act”. Sadly, one of the most important aspects of s 60CC of the Act was not addressed.
The underlying theme of Ms H’s opinion seems to be that by reason of the instability and variability of the quality of the care X has received over his life, he has been exposed to and suffered from a “cumulative level of harm”. She opines that the harm has been exacerbated by his significant health needs and that the imposition of stability both in terms of identity of carer and structure will go some way towards assisting X and will reduce his exposure to any further accumulation of harm. But that begs the question. The regimes proposed by at least the applicant, the second respondent and the independent children’s lawyer each, if implemented and adhered to, carry with them the prospect of stability, both in terms of identity of carer and structure, for X.
I can discount the first respondent’s proposal immediately in the present context because I do not consider that it is likely that if X was to live with the first respondent his living arrangements would be stable and secure. I consider that there is a real likelihood that X’s physical care and emotional care would be compromised if he was to reside primarily with the first respondent.
However, the proposals from the applicant, the second respondent and the independent children’s lawyer each carry with them the very real prospect that X’s arrangements will be stable for him – he will have a place he can call “home” as Ms H puts it. Again, for reasons I have set out below I expect that both the applicant and the second respondent will be able to adequately meet X’s physical, intellectual and emotional needs and each has the capacity to provide him with the stability that Ms H identifies is important for him.
Implementation of the applicant’s proposal would, in the short term, carry with it some instability in that there will be a wholesale rearrangement of X’s living arrangements and there will necessarily be, I consider, an effect upon his relationships with the second respondent and her husband as well as the applicant, if that was to occur. The evidence does not address whether the effect upon those relationships will be positive or negative and, if negative whether that detriment will be short or long term. Similarly, living with his father may not necessarily translate into a better and more positive relationship between X and the applicant. Conversely spending much reduced time with the second respondent and her household may not necessarily have a negative impact upon X’s relationship with her or her husband. Nor is there any evidence in this case that suggests that a diminution in the relationship between X and the second respondent and/or her husband is not necessarily in X’s interests especially if it coincided with a qualitative improvement in the relationship between X and the applicant. The emphasis of the professional evidence seems to be upon putting in place an arrangement which promotes stability and continuity.
Capacity
I am satisfied that the applicant has the capacity to meet X’s physical needs. Although the applicant’s financial circumstances might be described as modest and his present living arrangements reflect those circumstances, I accept his evidence that in the event that I was to order X to live with him, he would make more suitable accommodation arrangements. There is no evidence that he would not be able to do so. I also accept his unchallenged evidence that in the event X was to live with him, he would be able to organise his working arrangements so as to better suit his responsibilities towards X.
I am, however, more sceptical of the applicant’s evidence that he will be able to call on the assistance of his new girlfriend to assist with getting X to or from school if he needs to do so. I treat those statements by him as aspirational statements rather than statements of fact.
I consider that the applicant’s evidence that in the event that day-to-day difficulties with X’s care present themselves, he would “work it out” largely represents what parents and carers of children do on a daily basis. It is impossible to plan for every contingency. There is nothing in the evidence (including the evidence of Ms G) that suggests that the applicant would not be able to “work it out”. Indeed, the evidence of Ms G is that the applicant’s working memory and verbal comprehension indices suggested that he is able to reason and solve problems and make decisions in everyday living situations.
I also consider that the applicant will be able to meet X’s intellectual needs. Some criticism was made of the applicant about his failure to plan for X to attend a particular school if he was to live with the applicant. But, the applicant, in fact, has a plan.
I accept the applicant’s evidence that in January, 2020 he made enquiries about X attending school in B Region. I accept his evidence that he approached the school, receive the necessary paperwork but never lodged it with the school. This evidence demonstrates that he did, as one might have expected, commence to make inquiries about X going to schools in the event that he came to live with him permanently. That shows a measure of child focus and capacity to plan on the applicant’s part. Having said that, in cross-examination by counsel for the independent children’s lawyer, the applicant suggested that if X was to live with him he would attend R School but he had made no enquiries with that school as to whether X could attend there or whether they have programs that might suit X’s particular needs. Given the delay that there has been in bringing these proceedings trial and ultimately having it heard, these matters should not attract criticism.
To the extent that X may have an emotional or psychological need to have his relationship with the second respondent and her husband facilitated by the applicant, I consider that he would facilitate that relationship. That is to say, he would comply with any orders made by the court for the purposes of X spending time with the second respondent and her husband (and the first respondent for that matter). Beyond that, however, I am not sure that the applicant sees value in the relationship between X and the second respondent and her husband. It is difficult to come to a conclusion about this however because in his trial material he acknowledged that X has a meaningful relationship with the second respondent and her husband. Notwithstanding that, in his cross-examination the applicant did not consider that X will miss the second respondent if he was to come to live with him.
A significant aspect of the case put by the second respondent and the independent children’s lawyer is that the applicant either does not have the capacity of the willingness to engage with X’s health care needs and see that they are met. For example, the evidence shows that whilst the applicant is aware of X’s diagnosis of ADHD, he has not spoken to X’s paediatrician about it. I accept his evidence that he has telephoned the S Hospital on more than one occasion, but has only been able to talk to nurses who have told him that the paediatrician would call him. He has received no call.
I accept the applicant’s evidence that when X was hospitalised with his respiratory condition in mid-2022 he was contacted by the second respondent (by text message) who informed him of X’s hospitalisation. She invited him to visit X. The applicant took up her invitation but only on the condition that she would not be present when he was there, so that there was no conflict between them. Although it was put to the applicant that he did not visit X at all, I accept his evidence that he did following the provision by him of a negative COVID-19 test.
It was put to the applicant that when X was most recently in his extended care for school holiday time, he did not administer to X all of his ADHD medication. It was suggested that when X was returned to the second respondent there were two tablets remaining in the bottle in which the tablets were supplied and that necessarily meant that the applicant had not administered all of the medication X ought to have consumed over that period. The applicant, however, denied that proposition. Although he accepted that there were tablets left in the bottle when he handed them back, his evidence was that he had administered the medication to X in accordance with the second respondent’s instructions. I accept his evidence about that. I am not satisfied that he failed to give X any medication as was suggested to him. I make that finding notwithstanding the applicant’s evidence that he does not think X needs the medication.
In the event that X was to live with the applicant I am satisfied that X would have his medical needs met. It might be that the advice received by the applicant from those he chooses to advise on X’s health needs is different to that received in the past, but I do not consider that the applicant would fail to seek advice, or to consider it or act upon it. His evidence was that he has sought advice about X’s health needs. I am in no position on the evidence to determine which advice – that received by the second respondent or the applicant – is more probative.
I find that the second respondent will be able to meet X’s physical and intellectual needs. She has done so for some time now and no serious criticism is made of the care that she has provided to X. That X has a relationship with his mother and the applicant is a credit to her and her husband, just as much as it is a credit to them.
The evidence satisfies me that despite that, the second respondent and her husband have a poor opinion of the applicant as a person and a parent. It is difficult to discern if they value X’s relationship with his father. Apart from making him available to the applicant, there is little evidence of any other efforts by them to facilitate that relationship. The applicant does the lion’s share of the travel to spend time with X and has consistently done so. Changeovers take place in Suburb T, Brisbane.
Submissions
It is clearly the case that X has some challenges with his health and more generally his functioning. It is also clearly the case that the author of the s 62G report and the medical practitioners who have treated X argue that his well-being is best served by stability and continuity in his care. Orders, whether they be those sought by the applicant, the second respondent or the independent children’s lawyer, will provide stability and continuity of care over the long term. I do not consider that the orders sought by the first respondent will provide stability because I do not consider that she has capacity to observe them and meet X’s needs.
The applicant quite coherently reasoned that the role of a foster carer was to transition a child back to a biological parent who is willing and able to care for that child. He asserted that it was the recommendation of the child safety officer following the child protection trial in 2016. It was more than the fact that he was X’s father but rather that he was a biological parent of X that informed his approach in this case. He argued that ordinarily X would live with him and his mother, if they were in an intact household and there were no child protection issues. The applicant’s case is that there are no child protection issues which would mean that X should not live with him, one of his biological parents. His animosity towards the second respondent and her husband has its foundation in what he perceives to be the injustice to him, and X, of them being separated.
The independent children’s lawyer and the second respondent argue that it is only she (either alone or together with her husband – it was not made clear) who can provide the necessary stability and continuity and that neither the first respondent nor the applicant are able to do so.
I accept that the first respondent is not able to do so.
The evidence is that presently X is having his needs met. His need for physical security is met by his living arrangements with the second respondent. His intellectual needs are met by the second respondent. He attends a school that is aware of and meeting his needs as best as the evidence would let me find.
His need for a relationship with each of his parents is met and facilitated by the second respondent. That X has a meaningful relationship as assessed by Ms H demonstrates that whatever it is that the second respondent has done to facilitate X’s relationship with the applicant has been successful.
Effectively, the argument made for both the independent children’s lawyer and the second respondent is that the applicant is an untested parent to X and given his attitude towards X’s ADHD diagnosis, it would be a risk to place him in the applicant’s care. These arguments are true. But the evidence does not address either the nature of, or the magnitude of the risk. The nature of the risk is not defined by the evidence because the evidence does not answer the question – what will happen if X is placed into the applicant’s care and, for example, he does not attend to treating X’s ADHD.
Notwithstanding the ill-defined nature of the risk and the lack of evidence concerning its consequences should it come to pass, I accept that it is a “risk” to place X in the full-time care of the applicant for the reasons identified by the independent children’s lawyer and the second respondent. But to do otherwise would be to deny X the opportunity to be cared for by one of his parents on a full-time basis.
The submissions of the independent children’s lawyer carried a sub-text that the applicant should have shown more gratitude for and acknowledgment of what the second respondent and her husband had done for X. It was said explicitly that his lack of acknowledgment of them now “is a lack of acknowledgment of their care of his son”. Perhaps that is right. Perhaps he could have been or might be more effusive in his praise of the second respondent and her husband. But as I have recorded elsewhere, it is uncontroversial that in 2016 there was a finding in the Magistrates’ Court that the applicant was a person who was willing and able to care for X. He has pursued these proceedings ever since without pause, opposed at least since 2018 by the second respondent who joined the proceedings on her own application. Perhaps his gratitude has been worn away.
The independent children’s lawyer submitted that to place X with the applicant would be “unsafe”. The applicant’s different view of X’s ADHD diagnosis (based upon the medical opinion of a general practitioner), his present residential arrangements, the asserted vagueness of his plans for X’s schooling and his status as an “untested parent” were the matters said to be rolled up in the label “unsafe”. Nothing, other than the matters I have already mentioned, was identified to support this submission.
The submissions made by the independent children’s lawyer were echoed by counsel for the second respondent. In addition it was said that “A large concern for the interveners, a big concern for them, is what the father said in evidence in terms of his … he had [X] in his care that he would not allow any time with [Ms Pennel and her husband]”. It was argued that should it turn out to be the case that X does not spend any time with the second respondent and her husband “that would have a severe impact on [X]”. Whilst counsel accepted that if there was an order that X spends time with the second respondent and her husband that would alleviate the difficulty for X, he submitted (implicitly) that the applicant was unlikely to comply with any such orders. There is, however, no basis in the evidence for such a submission. My assessment is that the applicant would comply with any orders of the court, and I so find.
A secondary consideration for the second respondent was the apparent lack of planning and “insight” into what X’s living arrangements were going to be. Again, that submission is not borne out by the evidence. The applicant’s evidence was that he would arrange accommodation for him and X. He accepted that his current arrangements, suitable for him as a single man, would not be suitable if X was in his care. Leaving aside his optimistic reliance upon his new girlfriend for assistance, he gave evidence of a plan to utilise before and after school care for X. These matters were not planned down to fine detail, but in my view, they did not need to be given the uncertainty surrounding the outcome of these proceedings.
Disposition and orders
There is no presumption that children should be cared for by parents rather than others who are not parents for the purposes of the Family Law Act: Agambar & Agambar [2021] FedCFamC1A 1 at [40] citing Maldera v Orbel (2014) FLC 93-602 at [79]– [81]; Valentine & Lacerra (2013) FLC 93-539 at [42]– [43]; Aldridge & Keaton (2009) FLC 93-421 at [59]– [61], [75]– [81], [83]. That is not to say that the fact of parenthood is not relevant. It is and requires careful consideration
I do not accept the submissions made by the independent children’s lawyer and the second respondent that the apparent risk to X’s welfare in the applicant’s full-time care means that he should continue to reside with the second respondent. Whilst this is what I consider to be a finely balanced case, I consider that the applicant’s proposal carries with it more advantages for X than the advantages that flow from the proposal of either the independent children’s lawyer or the second respondent. Whilst both can meet X’s needs on my assessment, the balance is tipped in favour of the applicant’s case because he is a parent of X, something which is both relevant and worthy of careful consideration (Maldera v Orbel at [81]), at the very least pursuant to s 60CC(3)(m) of the Act.
I do not consider that it will be in X’s best interests to live with the first respondent because I do not consider that she has the capacity to meet his needs as I have set out above.
I consider that there should be an order that X live with the applicant. I accept that such an order will require X to leave his present school, but I am not satisfied that will not be addressed by the applicant in due course. There is nothing to suggest that he is not committed to doing all that he can for his son and much to suggest that he is so committed. At the very least his persistence with these proceedings is evidence of that commitment to his son.
The independent children’s lawyer submitted that given the nature of the relationship between the applicant and the second respondent, an order for equal shared parental responsibility would not work. Those submissions were echoed by counsel for the second respondent. I accept them. On the evidence the applicant and the second respondent would be very unlikely to agree upon anything concerning X. There should be no order for parental responsibility for X in favour of the second respondent.
I was not addressed upon whether the presumption of equal shared parental responsibility apply as between the applicant and the first respondent. Nonetheless, whether or not it applies, I consider that such an order is in X’s best interests. Once the applicant was given an explanation of what an order for equal shared parental responsibility meant, he thought that he and the first respondent would be able to discharge those requirements by making decisions about major long-term issues for X together. I consider that it would be to X’s advantage for decisions concerning major long-term issues for him to be made jointly by the applicant and the first respondent. I consider that such an order is likely to work.
Neither the independent children’s lawyer nor the second respondent made any submissions about the time that X should spend with the second respondent should he live with the applicant. The applicant suggested that the time should be once per month. X will live in B Region with the father. The second respondent and her husband live in Brisbane. There is significant travel involved. There is also a matter of X’s time with his mother. No party suggested that he should not spend time with her although having regard to the evidence of Mr L and the concessions from the first respondent about some of the conditions in her home, the applicant’s position changed from X spending alternative overnight weekend with her to daytime only, away from her household.
Indeed, neither the independent children’s lawyer nor the second respondent suggested in the case outlines any orders that might be put in place in the event that the court was persuaded that X should live with his father. In those circumstances I am left to construct, as best I can, an arrangement which would meet X’s needs having regard to the nature of the relationship that he has with each of the parties to these proceedings, and the impact of travel upon him and his time in the applicant’s household given the geographical distance between each of the parties.
Notwithstanding the findings that I have made about the first respondent’s capacity to care for X on a full-time basis, I do not consider that overnight time in her care is inappropriate. Overnight time in her household each alternative weekend would permit X to advance his relationship with the first respondent as well as J. The applicant said in his evidence and submissions that he would continue to travel from B Region to Brisbane to ensure that X spent time with the first respondent. I consider that it is in X’s best interests that he should spend each alternative weekend from a point on a Saturday morning (and in default 9:30 AM) to a point on a Sunday afternoon (and in default 4 PM) with the first respondent.
In my view, it would be inappropriate to require X to travel to Brisbane for the purposes of spending time with the second respondent and her husband on one of the two alternative weekends in each month that he is not spending time with his mother. To make an order for X to spend time with the second respondent for a whole of a weekend in Brisbane would mean that his time in his father’s household would be reduced to weekdays and one weekend per month (in effect). That effect, coupled with the amount of travel of X would be required to do would not, in my assessment, be in his best interests. An arrangement whereby for one day on one weekend per month as agreed between the second respondent and the first respondent (and in default from 10:30 AM on a Sunday morning to 3 PM on a Sunday afternoon) when he is otherwise in the first respondent’s care is appropriate. That would permit the second respondent and X to continue their relationship and recognises the significance of that relationship to him. It is of significance, in my view, that Ms H did not consider that the X had a primary attachment to the second respondent but rather she represented a person who had provided some continuity of care for him while these proceedings have been worked out.
I do not propose to make orders that make arrangements in relation to special occasions or the like for X’s time with each of his parents or the second respondent, save that he should spend those occasions with the applicant or the first respondent. Despite an opportunity to do so, no party addressed me upon the minutiae of the orders proposed by the second respondent, which in any event assumed that X would be living with her.
X’s school holiday time should be spent in accordance with his weekend arrangements unless the parties otherwise agree. The orders reflect that approach. I consider that to be appropriate given that I have concerns (that I have expressed above) about X living in the first respondent’s household. I consider that there may well be a significant risk to X’s physical well-being were he to live in the first respondent’s household for any more than two days at a time given that he may be exposed to the first respondent’s unhygienic household which might have a deleterious effect on his health. Those risks can be better managed if his time is only two days and one overnight.
The changeover orders I have fashioned see the applicant delivering X to and collecting him from the first respondent’s residence. There is no other workable option given that the first respondent has no driving licence. The applicant expressed a willingness to do the travel involved. The orders provide for the second respondent to collect and deliver X to and from the first respondent’s residence for the same reason. It follows that the applicant must know where the first respondent lives and the second respondent must have that information as well. I have also included an obligation upon the applicant to inform the first respondent of X’s address with him, his school’s address and the details of his treating health care professionals, all of which I consider to be uncontroversial.
Finally, I have included some orders for telephone communication which are self-explanatory.
Accordingly, I make the orders set out at the commencement of these reasons.
Two final matters
There is no explanation on the evidence as to why X was not returned to the care of the applicant following the outcome of the child protection hearing in 2016. Having removed X from the care of the first respondent, prosecuted an application for a care and protection order and failed, on its face, it seems extraordinary that officers of the Department of Child Safety, Youth and Women would then choose to return X to the first respondent’s care albeit under their supervision. As I have recorded above, it is uncontroversial that the judicial officer determining the child protection application formed the view that the applicant was a person who was ready willing and able to care for X. In those circumstances the actions taken by the Department are confounding.
Courts, including this court, should never tolerate perjury. The papers in these proceedings and a transcript of the evidence before me must be transmitted by the registrar of this court to both the Commissioner for the Australian Federal Police and the Commissioner for the Queensland Police Service with request that they be reviewed for the purposes of determining whether any offences have been committed against the laws of the Commonwealth or the State of Queensland. It is often the case that such referrals are made from this court to those authorities but sadly, my experience has been that such requests are rarely if ever given the consideration that they deserve. I would hope that the evidence given in this case, in such clear and unambiguous way, attracts somebody’s attention.
I certify that the preceding one hundred and twenty-one (121) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett. Associate:
Dated: 11 January 2023
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