Clery & Clery
[2022] FedCFamC1F 99
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Clery & Clery [2022] FedCFamC1F 99
File number(s): PAC 3118 of 2019 Judgment of: RIETHMULLER J Date of judgment: 3 March 2022 Catchwords: FAMILY LAW – CHILDREN – Orders as to with whom children should live – Whether children to spend supervised time with or have supervised contact with father – Relevant Considerations – Family violence or risk of harm – Where father sentenced as a result of possessing child sexual abuse material – Where supervised time with father causes mother significant fear for children – No order for supervised time – Orders for gifts or cards on special occasions Legislation: Family Law Act 1975 (Cth) ss 4(1AB), 4(1AC)(c), 4AB, 60B, 60CA, 60CC, 61DA, 65AA, 65D, 65DAC Cases cited: Garrod & Davenort [2018] FamCA 825
Keane & Keane [2021] FamCAFC 1
Kirby v Phelan [2003] VSC 43
YY v ZZ & Anor [2013] VSC 743
Number of paragraphs: 129 Date of hearing: 31 January 2022 to 4 February 2022 Place: Parramatta Counsel for the Applicant: Mr Hill Solicitor for the Applicant: Inner West Solicitors Counsel for the Respondent: Mr Kelly Solicitor for the Respondent: Nash Allen Williams & Wotton Counsel for the Independent Children's Lawyer: Mr Francis Solicitor for the Independent Children's Lawyer: Claremont Legal ORDERS
PAC 3118 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR CLERY
Applicant
AND: MS CLERY
Respondent
AND: INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
RIETHMULLER J
DATE OF ORDER:
3 MARCH 2022
THE COURT ORDERS THAT:
1.The mother have sole parental responsibility for the children X born 2010 and Y born 2016 (“the children”).
2.The mother shall inform the father in writing of any major decision that she makes in relation to the children’s medical treatment, education, and religion.
3.The children live with the mother.
4.The father be at liberty to communicate with the children in writing on the children’s birthdays, Father’s day, and Christmas.
5.Such communication, referred to in order 4, may be by a letter or a card and/or a gift (not electrical or electronic) on each occasion subject to the following conditions:
(a)the father shall ensure at all times:
(i)that the contents of his communications with the children and gift for the children are age-appropriate; and
(ii)that he not refer in such communications to the mother or any member of the mother’s family.
6.The mother shall be entitled to read any written communication and examine any gift sent by the father herself or by arrangement with any adult nominated by her (“her nominee”) and have that person review correspondence and gifts and, in the event that the mother considers the communication does not comply with these orders, shall return the material to the father and the father may resend an alternate letter or gift within a further 7 days, to be examined by the mother or her nominee in the same way as stipulated here within.
7.The father is restrained from contacting the children other than as provided for by orders 4 and 5 above.
8.The mother shall provide the father with a copy of the children’s school reports (with liberty to redact the identity of the school) and a photo at Christmas time to the address nominated by the father.
9.Within seven (7) days of the date of these Orders, the mother and the father shall provide each other with their emergency contact telephone numbers and postal addresses (which may be a Post Office Box) and inform the other as soon as reasonably possible in writing of any changes thereto.
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 the pseudonym Clery & Clery is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
RIETHMULLER J:
INTRODUCTION
The applicant father seeks contact orders with respect to the two children of the parties (X, born in 2010, and Y, born in 2016) who live in the primary care of the respondent mother. The mother opposes orders for contact on the basis that the father presents an unacceptable risk to the children.
BACKGROUND
The father was born in 1976 and the mother in 1975.
The father and his family came to Australia from City O, United Kingdom in 1982.
In late 1989 the father was sexually abused by Mr B (“Mr B”) (from when the father was 13 years of age and continuing until he was 17 years old). By late 1993 Mr B lost sexual interest in the father, but they maintained a friendship. In early 1997 Mr B was charged with child sexual contact offences against another boy, and then subsequently charged with child sexual contact offences against the father. In May of 1997 Mr B wrote to the father excoriating him for not supporting him, inferring that the father liked what Mr B did to him. Shortly after Mr B committed suicide, which brought the Police action to an end and consequently supports for the father also ended.
In early 1991 the father, who was then 15 years old, sexually assaulted his sister who was then around seven years of age. The extent of that assault is in dispute and discussed below.
During the period from 1996 to 1999 the father had a relationship with Ms C (“Ms C”). The extent of that relationship and the age of Ms C at the time are in dispute.
In early 1999 the parties met. At the time the father was a professional and the mother was a casual part time office worker. In 2002 the parties married. The parties later had the two children who are the subject of these proceedings.
In April 2018 the mother had seen the father operating his computer and the mother saw a number of sites for child sex abuse material (“CSAM”) on the father’s computer. When the mother asked the father about the CSAM the father told the mother he was “hacked”.
In July 2018, the mother discovered CSAM on the father’s computer when the youngest child was playing with the computer. The file names seen by the mother included titles such as “10 year old loses virginity to father” and “13 year old raped by father”. The police became involved and the parties separated thereafter.
The father pleaded guilty to possession of CSAM and was sentenced on the basis of having six files on his computer. In 2019 the Local Court recorded a conviction, and imposed a three year supervision order, a $2,000 fine, and 300 hours Community Service, and placed the father on the Child Protection Register. The father appealed the sentence, and in late 2019 the District Court set aside the order recording a conviction (not the finding of guilt) and reduced the bond period to two years. However, the father remains listed on the relevant Child Protection Register. Thereafter the Police withdrew the Apprehended Domestic Violence Order (“ADVO”) application (the mother saying this was done without the police contacting her).
In December 2020 the father attended at the D Hospital with homicidal ideations with respect to the mother and children, and suicidal ideations. The hospital notified the police who warned the mother for her own safety.
The mother has been strongly opposed to the father seeing the children since she separated from the father.
WITNESSES
Whilst the witnesses on affidavit all gave evidence and were cross-examined, it was notable that two professionals that have had involvement with the family had not provided affidavits. Dr E, who had provided five reports with respect to the father for his criminal law and ADVO proceedings (which were attached to the father’s affidavit and provided to the family report writer) did not produce his notes, nor was he made available for cross-examination. The mother’s counsellor produced her notes during the course of the trial and was called to give oral evidence. It is unclear why the mother’s counsellor was not on affidavit.
The father
The father gave evidence and was cross-examined. The father was very clear and deliberate in his answers to questions and obviously deeply committed to having a relationship with the children.
I accept that the father was sexually abused for a lengthy period as a child. I also accept that this caused significant psychological trauma that has had profound effects upon him throughout his adult life.
The father admitted to having viewed CSAM over many years, starting in 2002. The criminal charges related to only six images as it appears that he regularly deleted the material after viewing it on his computer. The father did not dispute the mother’s evidence that some of the files include titles such as “10 year old loses virginity to father” and “13 year old raped by father".
The father’s explanations for viewing the material were difficult to assess. He said that his psychologist had told him that he was effectively “self-medicating”. The father said that often he would be triggered to look at such material as a result of comments by the mother. He also said that he viewed the material to confirm to himself that he was repulsed by the images. He said that he had been told he was a paedophile by Mr B, although the letter from Mr B that was produced did not say that this was Mr B’s view.
In cross-examination the father raised the question of what the mother was doing looking through his computer, when she found the material. Even if the mother was surreptitiously looking through his computer, which I do not accept, it matters little in light of the issues that followed. There was some dispute as to whether he told the mother he would take the material to the police or she said that she was going to do so. It seems to me to matter little as I am of the view that if the father were the first to go to the police it was only as a result of his belief that the mother was going to do so.
The father presented as an articulate witness who strongly desires a relationship with his children. The events of his life have clearly caused significant distress as does the prospect of not seeing his children. Whilst it is difficult to be critical of someone who is the victim of such childhood abuse, his presentation did not engender confidence that he has moved from an intellectual understanding of his past conduct to real changes and insight. In particular the father still harbours blames for the mother’s actions despite those actions being reasonable responses to the confronting issues caused by his conduct.
Dr E
The father obtained five separate reports from his therapist, Dr E, for the criminal law and ADVO proceedings. It is not apparent that Dr E was aware that these reports would be used for the family law proceedings.
In his first report, Dr E (being unaware of the incident with the father’s sister) placed weight upon the absence of the father’s forensic history, saying:
Throughout my sessions with [Mr Clery], he has repeatedly expressed appropriate remorse for his behaviour. I note that he has no prior forensic history and in this context, notwithstanding the nature of the material, his behaviour appears to have been fairly confined and contained to the context of his home with no suggestions of him acting out on these fantasies or any form of predatory behaviour.
In a second report dated 12 February 2019, for use in the Local Court, Dr E addressed difficulties of the father in fully understanding that the children portrayed in the images were his personal victims.
On 19 April 2019 Dr E released a third report to demonstrate progress in therapy with the father, before sentencing.
The fourth report dated 7 November 2019 discusses the effects upon the father of being placed upon the sex offenders register.
The fifth and last report dated 7 June 2021 (the only report after the disclosure of the assault by the father on his sister) is marked as a draft and unsigned. The report was prepared for ADVO the proceedings. Dr E wrote in this draft report:
I will address this according to the questions posed in your letter of instruction.
1. Why [Mr Clery] [the father] had these disturbing thoughts and any information you can provide regarding a possible diagnosis that may relate to those thoughts.
At the time of the thoughts, [Mr Clery] was experiencing a panic attack. This needs to be considered, against a backdrop of protracted stress in his marriage dating back to in July 2018 and prior to that, him struggling with symptoms of Post Traumatic Stress, arising from his own history of being sexually abused as an adolescence between the ages of 13 and 17.
I have previously diagnosed [Mr Clery] as suffering a Depressive Disorder (severe and recurring) and notwithstanding him being medicated and having counselling from time-to-time, the underlying driver referable to his symptomatology have prevailed. This relates to an absence of contact with his children and high levels of anxiety because he would not be able to see them for many years, if at all, in the future. He reported that there have been associated issues referable to a property settlement with his former mother.
It would appear at the time of the disturbing thoughts, he had attended the [D Hospital] and had clearly decompensated due to feeling overwhelmed by the additional stresses created by his sister’s disclosure through her Affidavit. Arising from this, [Mr Clery] arguably was not thinking clearly and was in essence acting and speaking in a highly impulsive fashion. I note that he was then seen by a hospital Psychiatrist who called the New South Wales Police and he settled down.
Whilst his depression and anxiety have remained and indeed are escalating, he nonetheless has not acted on these thoughts.
Significantly, by his account, his mother and children live very close to the hospital. He argues that if he had intended to harm them, their home would have been the destination, not the hospital. In other words, the attendance at the hospital and associated behaviour in many ways was a cry for help.
2. What treatment [Mr Clery] is receiving, if any.
I have had no contact with [Mr Clery] until my further review today for two months. He advises that he has continued with Mirtazapine (50mg), which suggests that his dose has been increased from the earlier dose of 30 milligrams.
He further advised that he endeavoured to obtain a Mental Health Care Plan to see a Psychologist at [Suburb F]. Evidently, when he made contact to organise an appointment, he was advised that there is a six month waiting list.
In this context, [Mr Clery] has not had active psychotherapy, although it would appear that his medication and the structure which his employment provides him, his mood state has remained stable. He reported that he is working with [G Company], a small business, where he is working from home.
[Mr Clery] is well aware that he is able to contact me if he feels his mood state is deteriorating.
I note that he has continued with psychotropic medication.
3. If able to, an opinion on whether [Mr Clery] will act upon the thoughts he is having.
I believe that it is highly unlikely that [Mr Clery] would act upon these thoughts. The risk of a reoccurrence in this regard is considered to be low. There are a number of protective factors in play, including his employment, the support of friends and his father. I am further encouraged by an absence of any forensic history in the Court referable to matters of threat, intimidation or violence. Paradoxically, if he is permitted supervised contact with his children, I suspect the intensity of his symptoms will reduce quite dramatically.
Dr E was not called in these proceedings and his notes were not produced. Notably, it was not until the last (draft) report that the father disclosed that he had sexually assaulted his sister (and minimised the events). Whilst this may have led to the reports in the criminal law matter being unduly favourable, that is not the issue before this court. In short, Dr E was an adversarial expert on behalf of the father for the criminal law proceedings who was not fully informed (at least prior to his last (draft) report).
These matters, together with Dr E’s absence from the witness box, significantly impact upon what weight could be placed upon his reports.
Paternal Grandfather
The paternal grandfather was called to give evidence and be cross-examined. He presented as an amiable although unsophisticated man. He was clearly distressed that the events have resulted in the loss of his relationship with his grandchildren.
Whilst he was aware of the incident between the father and the father’s sister he said he was unaware of what actually occurred, assuming that the father had only been looking at his sister. He said that he has not, since then, had details of what occurred given to him. He confirmed that his wife, the paternal grandmother, flew into a rage when discovering the incident and beat the father. He also confirmed that the father was asked to leave the home a number of years later after authorities had been informed and advised this should occur, even though the father had nowhere to go. Whilst clearly understandable that the father would have been asked to leave, it is surprising that there was not some consideration given to where the father may go.
His recollection of the relationship between the father and Ms C was that there was a relationship when the father was an adult and Ms C under age, although he accepted his son’s assurance that nothing inappropriate had occurred.
He recalled two occasions where the father had said things that led him to think that the father was considering killing the mother and suiciding, on the second occasion taking him to D Hospital. He said he did not telephone the mother as he does not have her telephone number and has never called her on the telephone. He also recalled the father, on occasion, voicing that the mother ‘is going down’ which he took to mean in the financial sense.
The paternal grandfather also recalled an event where the father had grabbed the older child by the back of the neck, which he had thought was inappropriate, although no other events.
I formed the impression that the paternal grandfather was a kind man (although this does not sit easily with the admission that he once electrocuted his dog). He seemed somewhat ineffectual and to be someone who allows events to simply take their course. I would not have confidence in him as a supervisor for any contact between the children and the father in the context of the issues in this case. One could not expect the mother to ever have confidence in him.
Ms H
Ms H was living near to Mr B and met the father when he was around 18 years of age. She allowed the father to live at her home when he was around 20 years of age following police intervention with Mr B.
She has known both parties and the children for a long time and would do what she can to assist them. She gave some evidence of X missing her father.
She is aware of the father’s conviction, but not much of the detail of the offending behaviour with the CSAM on the father’s computer. For example she was not aware of one file being titled “13 year old raped by father”. She was not aware of the sexual assault by the father upon his sister, nor of any suicidal thoughts of the father, nor the father’s thoughts of killing the mother or children.
She has a positive view of the father and his parenting, only noting that at times the father may appear arrogant. She had suggested to the mother to keep a line of communication open with the father.
Ms H presented well when giving evidence and appeared to be an honest, generous and forgiving person, however she had little knowledge of the circumstances central to these proceedings.
Ms C
Ms C presented was an honest and concerned witness. As with Ms H, she knew little of the detail of the events that are the central concern of the mother in this matter.
She is a friend of the father, having been attracted to him as a girl in her mid-teens (although a little over six years younger than the father). Ms C maintains that there was no physical relationship when she spent time with the father as a teenager, save for the occasional hug which she would have initiated. She recalls the interactions positively and the father’s kindness to her. She recalls when her father became concerned but maintains there was nothing for him to be concerned about.
In 2010 the father had an affair with Ms C. The mother produced emails from her that include the comment, “When I was dating you all those years ago”. Such a comment is not necessarily inconsistent with the evidence she gave. She says she does not recall going to the drive-in theatre with the father and his sister, as described in the sister’s evidence.
Overall, I found her to present as a credible witness, however I am unsure as to the accuracy of her recall of events that occurred so long ago in circumstances where the events may have had little significance to her at the time. I accept that she sees the father in a positive light and trusts him (even with her own children), however this is in circumstances where she is not fully appraised of the relevant circumstances that are the basis of the argument by the mother as to risk. As a result I do not place significant weight on her evidence of the father’s good character.
The mother
The mother gave evidence and was cross-examined. Her evidence was very impressive. Her distress was apparent in her physical presentation and voice. At times she struggled to hold back tears and managed to do so. I found her to be genuine in her presentation.
The mother said that her doctor had diagnosed her as suffering from anxiety and that she has a script for Pristiq to take as required, although is not taking it at present.
The mother explained that she discovered the files on the father’s computer when one of the children was playing on the computer and she went to close it. She did not see the contents of the files, only the file names.
The mother confirmed that she first heard of the father’s sexual assault upon his sister in October 2020.
The mother was particularly distressed when the police attended upon her in December 2020 to advise of the father’s thoughts of homicide and suicide. She now has security cameras installed at the house.
Importantly, the mother was not implacably opposed to any connection between the father and the children. She said she thought it important that the children have a relationship with their father, but remains worried about their safety, explaining that she did not think that she “could deal with it” if the children were around the father. However, she was able to recognise some things that she could cope with, such as agreeing to advise the father of major health issues and arrangements for him to receive photos each year. She queried providing school reports, but on the basis that during the relationship she found the father was uninterested in schooling issues. She was also prepared to allow gifts and cards, provided they could first be checked to ensure suitability and contained no electronic devices.
She is not persuaded that treatment for the father is likely to make a difference as it has not yet done so from her perspective. Having regard to the father’s thoughts of killing her, the children, and himself in December 2020, and his Facebook page contents, her views are not without rational basis.
I have no doubt about the genuineness of the mother’s fears for the safety of the children and her own safety. Her fears are based upon facts and circumstances that rationally lead to real concerns for safety. I also accept that her reaction to these issues is one of very significant anxiety. I accept her evidence that if she were required to send the children for contact (even if professionally supervised) that it would be likely to significantly impact her functioning and would risk making her emotionally unavailable to the children.
The father’s sister
The father alleges in early 1999 his sister informed the mother that the father had sexually assaulted her when they were children. In light of the father’s statement that this event only involved brief touching, it became necessary to have evidence of the detail of what occurred in the event. In a further proof of evidence from the father’s sister, explaining the details of the sexual assault, she states:
3. I swore an affidavit in these proceedings sworn on 4 December 2020.
4. In that affidavit I said "when I was approximately 7 or 8 years of age I was sexually abused by my brother, [Mr Clery].”
5. I have been asked to give some particulars about what happened I meant by ‘sexually abused’. I am distressed having to do this.
6. When I was about six or seven years old [Mr Clery] took me into a room. He did it purposely. He told me he would read me a book if I went in the room. It was his bedroom.
7. When we were in the room [Mr Clery] then performed oral sex on me.
8. [Mr Clery] put his tongue in my genital area.
9. As [Mr Clery] was doing this he was talking about his girlfriend. I think his girlfriend's name was [Ms J] at the time. He said to me, something like “She [his girlfriend] likes this.”
10. [Mr Clery] was only performing oral sex on me for a short time when our parents walked in and saw what we were doing.
11. They were asking me about my underwear because they were hanging off.
The father’s sister was only briefly cross-examined. She was clear in her evidence and showed signs of distress, although this did not impair her in giving her evidence. She confirmed that after the assault upon her as a child her parents took no further steps and that she had the impression everyone had hoped to forget about the events. She also confirmed seeing Ms C and the father holding hands as part of their relationship when Ms C was a teenager, although was not able to give evidence of any more physical interactions.
I generally accept the evidence of the father’s sister, and prefer it to the evidence of the father. With respect to the relationship between the father and Ms C, I note that although the events were long ago and that the father’s sister would likely have been hyper-vigilant given the sexual assault that had occurred against her, I accept her evidence as to what she saw of that relationship in preference to the other witnesses.
The father’s uncle
The father’s uncle presented very well as a witness and was clear and forthright in his evidence. Whilst he has adverse views of the father, he did not recount all of the things the father had told him, it seems on the basis that some of the conversations were not intended to go further (and may well have been the father expressing anger and frustration as to his circumstances). I accept his evidence as to the events he witnessed. To the extent that he provided commentary, for example his doubts that the father was affected by living in Country P as a young child during civil unrest, I have not taken his evidence into account.
The mother’s counsellor
The mother’s counsellor, Ms K, was called to give evidence. Unfortunately she had not been asked by the mother’s solicitors to give an affidavit for filing in the proceedings. Her notes were provided on subpoena by the Independent Children’s Lawyer (ICL). Given her central role in the matter, she was called by the mother following provision of a brief outline of her evidence. Ms K, whilst working as the mother’s counsellor, is also a Regulation 7 Family Report writer.
In her outline of evidence Ms K said:
Should it be agreed that [Mr Clery] have contact with [X] and [Y] the impact on [Ms Clery]’s ability to parent her children would be considerable and multilayered.
Given [Mr Clery]’s threats of violence towards [Ms Clery] and [X]’s disclosures of alleged domestic violence and physical abuse by her father, any contact completed [Mr Clery] with the children would cause intense anxiety for [Ms Clery] and would retrigger her post traumatic stress like symptoms of nightmares, flashbacks and hypervigilance regarding her own and her children’s safety. The retrigger of these symptoms would mean that [Ms Clery] would be unable to be emotionally present and connected in her parenting of the children, both before, during and following the contact.
In addition, the extreme anxiety that any contact would have on [Ms Clery] would likely cause her to experience a dissociative symptoms where she is able to practically parent the children, but unable to emotionally connect with [X] and [Y]. [Ms Clery]’s disassociation for the emotional aspects of parenting her children would mean that she would be unable to nurture and develop her emotional relationship with the children which has already undergone significant stress and impact from the trauma the family have experienced.
[Ms Clery]’s ability to be emotionally present for the children is of particular importance for [X], given her exposure to trauma whilst in her father’s care. [X] is able to read her mother exceptionally well and she has expressed her concern for her mother when [Ms Clery]’s post traumatic stress like symptoms have been triggered by both [Mr Clery]’s threats of violence and his threats of ongoing litigation regarding the financial and parenting proceedings.
Ms K presented as a very confident witness. She has been seeing the mother and the eldest child since 2018. She is of the view that the mother is “triggered” each time there are further distressing events, such as some of the posts on the father’s Facebook page or the threats he made when attending at the hospital. Ms K believes that the mother will not be able to overcome her difficult emotional reactions until she has an extended period where she feels emotionally and physically secure. The impact of the events upon the mother is, in Ms K’s opinion, to potentially make her emotionally unavailable to the children as she is likely to disassociate when stressed by the father’s behaviours. This, in turn, likely reduces her capacity to appropriately parent the children and therefore impacts upon the children.
She confirmed that the mother rarely misses a session and is very motivated to improve her circumstances.
My impression of Ms K’s evidence was that it was not as detached as one may expect from a forensic expert (although noting that she gave evidence as the treating counsellor, and did not claim to have undertaken a forensic assessment in this case). At times her answers framed issues in the style of an advocate for the mother. For example, when asked about the mother’s reaction to various distressing events, Ms K deflected the topic as though the focus was not on assessing the level of distress the mother experienced but rather whether obviously distressing events should not be recognised as such. Also, when asked about the balance between the general need of children to know their parents and the potential impact upon the mother if supervised time were ordered, she quickly focused upon whether the father’s conduct meant that he should be seen as having lost his right to parent rather than what would best meet the children’s needs. In other ways her evidence was somewhat defensive of the mother, for example, Ms K gave evidence that the mother’s childhood experiences of an absent mother and father suffering mental health issues were the cause of distress “triggered” by her anxiety with respect to financial issues in the case. She later said that she did not think that the mother’s childhood experiences made her more vulnerable to the current stresses. Yet, it appears clear that the mother does have a greater susceptibility to stress, at least in part as a result of her childhood experiences, which must be taken into account in assessing the potential impact of the father’s conduct upon her and consequently her parenting.
Whilst the evidence of Ms K as to the likely impact upon the mother’s capacity to parent, if contact (including supervised contact) is ordered, had an element of advocacy in its tenor, I nonetheless accept the basic thrust of the evidence, particularly in light of having seen the mother’s own evidence.
Family Report Writer
The Family Report was prepared without the information with respect to the father’s sister, Ms C, the father’s thoughts of homicide and suicide, or the father’s Facebook page. In light of this additional information the family report writer, Ms L, changed her opinion.
I found Ms L an impressive professional witness. She demonstrated a clear professional detachment and was able to ground her opinions with references to evidence and theory. She used recognised assessment tools as part of her assessment process balanced with her own observations.
Ms L originally identified the risk factors with respect to the father as follows:
69. The following issues are seen to currently elevate [Mr Clery]’s level of risk:
a)The alleged sexual abuse was chronic in nature, approximately every two months (with a one-year break) between 2002-2018;
b)He has long-standing problems in intimate relationships and limited skills to address these issues.
70. The following factors were elevated prior to [Mr Clery]’s engagement in treatment, but are not currently present:
a) He minimised the seriousness and impact of his offending;
b)He had poor insight into his antecedents to offending and continued to justify his behaviour;
c)He had difficulties with stress and coping, in that he offended as a way of managing stress/distress;
d)He had problems from his childhood experiences of abuse, which directly contributed to his offending;
e)[Mr Clery] has a major mental illness, namely depression and PTSD, although these are both currently in remission.
Ms L identified that these factors needed to be amended in light of the additional material now available to her. The assault by the father of his sister (albeit when he was 15 years of age) shows a “diversity of sexual violence” which should be added to the factors, together with “psychological coercion” due to the age difference between him and his sister at the time. In light of the other evidence that was not available to her at the time of writing the report Ms L concluded that each of the factors in para [70] appear to continue to be present, and that the father’s depression and post-traumatic stress disorder (“PTSD”) may not be in remission. In addition, Ms L remained concerned about what else may not be known as to the father’s conduct or behaviours.
Ms L was of the view that the relationship between the father and Ms C, even if there was not an inappropriate physical aspect to the relationship, was relevant due to the age difference at the time, and the father’s description of his sister being “jealous”.
In reviewing her assessment of the risk that the father may well offend, Ms L was concerned about the father’s attendance at D Hospital, where he expressed thoughts of killing the mother, children, and himself, as showing that he continues to struggle with self-regulation.
Whilst Ms L recognised that the risks of sexual harm or direct violence were able to be managed through professional supervision of the father during any contact with the children, she remained concerned that he would not have insight into the children’s needs nor the impact that even supervised contact would have on the mother.
Ms L noted that the father was the victim of significant harm from Mr B, and that following this, the lack of appropriate interventions at various times characterised the case as one of “missed opportunities”. She was well able to consider the father’s distress independently from the distress for the mother and children in this case.
Ms L’s opinion was that the father having supervised contact with the children was not appropriate until the father had engaged in further treatment processes and showed meaningful changes in insight and behaviour. When asked for details of the types of processes she had in mind, she identified the Men’s Behavioural Changes courses, courses on parenting, and work with therapists.
Ms L was an impressive witness who was able to ground her opinions in theory and evidence. I accept her evidence.
Specific Issues
Father’s Relationship with Ms C
I accept that when Ms C was around 14 or 15 years of age she had a relationship with the father. On the evidence before me it was no more physical than holding hands and hugging. There is a little over six year’s difference in age between the two of them. Ms C, even now, recalls the relationship as positive. Indeed, she and the father had an affair many years later when both were of mature age. I am not prepared to draw an inference that the relationship between Ms C and the father was physically intimate when she was a teenager. However, I do note that there was a large age difference between him and Ms C at the time of their relationship when she was a teenager (having regard to their respective ages at the time).
That the father had an affair with Ms C many years later, when he was married, whilst no doubt very distressing for the mother, does not appear to be relevant to the parenting case.
Father’s viewing Child Sexual Abuse Material
I accept that the father had been viewing CSAM from around 2002 until the police became involved in 2018. I also accept that the material included files with titles such as those alleged by the mother, including “10 year old loses virginity to father” and “13 year old raped by father", both of which would cause any reasonable person significant revulsion and real concern as to the possible actions that may be taken by a person who chose to view such material.
I accept that the father had inadvertently left his computer on in the lounge room where one of the children had started to play with the computer, which led to the mother seeing file names on the screen.
The father initially claimed his computer had been “hacked”, although ultimately made significant admissions about the viewing of the material, pleaded guilty, and has been sentenced.
It is not suggested that the father has viewed child sexual abuse material since that time. The father’s explanations for viewing the material (confirming his revulsion of the material as confirmation that he was not attracted to children) are difficult to accept. Similarly, it is difficult to accept that conduct of the mother may have “triggered” him to view the material.
I am satisfied that the father used CSAM for many years. I am not persuaded sufficiently to make formal findings as to the precise nature of the psychological drivers that led to the father’s use of the material.
Father’s Facebook Posts
In early 2020 the father made or ‘liked’ a number of Facebook posts:
(a)On 16 January 2020 he posted an article showing a silhouette of a man with a raised samurai sword and a by-line suggesting trial by combat, adding the words (referring to the mother), “Ms Clery, what say you?”.
(b)On 27 January 2020 the father posted an article about a zoo which it was said will name a cockroach after a person’s ex-partner before feeding it to an animal, with reference to a poem about the mother.
(c)On 28 January 2020 the father posted an item including the words, “While I cracked her skull with a baseball bat”.
(d)The father added a cartoon of a woman’s tongue going through the head of a child coming out in the direction of a male, symbolising manipulation of the child’s voice.
(e)On another occasion the father added an image of a woman holding a finger to her lips and on her fingers the words, “Shut the Fuck Up”, appear to be tattooed. He added the comment, “If you ever look at my page again, Ms Clery, this one is made for you”.
In addition to mentioning the mother by name, in another separate post the father included a photo of one of the children.
On 18 February 2020 orders were made by consent restraining him from making any further comments in relation to the proceedings or allegations of any aspect of the proceedings.
Whilst the father had been prepared to engage in much negative discussion about family law and family law proceedings, notably he never disclosed on the Facebook pages that his own difficulties in obtaining contact with his two young girls flowed largely from him having viewed CSAM. Nor had he disclosed online that he had sexually abused his sister when she was seven years old, nor expressed suicidal or homicidal thoughts. There can be little doubt that these salient facts were omitted as they would have likely caused a tirade of abuse against the father. When asked to acknowledge that he was fortunate that the mother had not published details of the case online he filibustered before eventually conceding the point.
The Facebook material shows that the father was unable to recognise that he was the author of his difficulties, and that he engaged in conduct that threatened and belittled the mother. In stark distinction the mother’s response was measured, obtaining an injunction, and not posting details of the case online.
Father’s homicidal and suicidal thoughts
The father has attended a psychiatric facility on two separate occasions. First on 21 September 2019, following receipt of mother’s affidavit in the family law proceedings, and on the second occasion, in December 2020.
On the second occasion, the Nurse who interviewed the father gave a statement to the police (included in the annexures to the father’s affidavit), saying:
9.[Mr Clery] said to me ‘I'll make it a murder suicide’. He said this immediately after talking about his anger towards his ex-mother and so I believe he was referring to killing her and himself.
10.[Mr Clery] immediately said after that “I know I shouldn't be telling you this as I know you're a mandatory reporter’.
11.Throughout the entire consultation the risk factors for [Mr Clery] kept escalating, there were a lot of concerning factors.
12.At the end of the consult I reported what [Mr Clery] said to the Pysch Registrar [Dr M] and he went and assessed [Mr Clery] after me.
13.I made a report to the Child Well-being Unit about my concerns for [Mr Clery]’s children and also called [City D] Police to report the matter.
14.1 was worried enough about what [Mr Clery] told me to make those calls. I was concerned about what he was saying and how he presented. He was very calm when he said he would commit a murder suicide and referred to how he has nothing left, which is all a concern to me.
The Hospital staff reported the matter to police and the police advised the mother. The police also issued a provisional ADVO against the father. An interim ADVO has since been made, however the final hearing is not until August of this year (2022). The mother was understandably quite distressed by the events and has now installed video cameras at the house.
The father appears to have little insight into his behaviour, describing it as “dark thoughts” that he would not act upon, saying in his affidavit:
60. I feel regret towards [Ms Clery] for the distress and fear she must have felt when police notified her of a rather misleading version of what I told the mental health nurses on 8 December. What I actually said to the nurse and the psychiatrist did not have an element of threat and was never meant to be known to her. I said to both the psychiatrist and the nurse that I could and would never actually act out the thoughts that were in my mind, and they weren't even very clear and there was no plan - they were more raw emotion and temporarily unbalanced brain chemistry.
The explanation is indicative of minimising, and failing to appreciate or take responsibility for how his actions have inevitably caused considerable fear and distress to the mother, particularly in light of the Facebook posts.
The Apprehended Domestic Violence Order applications
Soon after the mother discovered the evidence of images on the father’s computer, a provisional ADVO was made against father on 13 July 2018, with the first court date on 17 July 2018.
On 13 February 2019 the Sentencing Assessment Report was released, showing low risk to the community and suitability for community service. On 14 February 2019 the criminal matter was adjourned part-heard, with the Local Court Magistrate indicating a preparedness to vary the ADVO non-contact order on condition that there be consent of both parents. However, the mother did not agree to such a course, and also opposes supervised contact, even if supervised by N Counsellors.
On 19 November 2019 the father’s appeal against the severity of the sentence imposed in the Local Court was allowed, with orders that there not be a conviction recorded. On this day the mother was present at the Safe Room at City D Court and was advised by a police officer that the ADVO matter had not yet come on in the Local Court and that she could return home as police would contact her if needed.
Following the recording of the father’s conviction being set aside (but not the finding of guilt), his solicitor then attended at the Local Court and advised the magistrate and police simply that the appeal had resulted in the conviction being set aside. As a result the police prosecutor withdrew the ADVO application without communicating with the mother. A careful reading of the transcript indicates that the father’s solicitor did not utter any falsehood in that interaction, however it must have been clear to the solicitor that the Magistrate and police understood his words in the more usual sense, namely that the finding of guilt had been set aside.
I am not persuaded that the father was aware of this, nor gave informed instructions on this tactic. However, it is clear that it must have been apparent to the solicitor that the magistrate and police were misled by the comment (even if technically correct). It caused considerable distress to the mother, and no doubt further deepened her distrust of the father, which has ultimately harmed his family law proceedings.
Unsurprisingly, the mother contacted the police to issue a further ADVO application, which occurred. The current ADVO application is awaiting a final hearing in August of this year (2022). The mother also obtained undertakings from the father in the Family Court of Australia to the effect that he would not attend at the home or attempt to contact her or the children.
In light of the circumstances of this case it is difficult to see how the father can successfully defend the application for an ADVO. That the ADVO proceedings continue appears to me to only serve to cause the mother further anxiety. Whether the conduct of the ADVO proceedings by the father (particularly through his lawyer’s conduct, not the lawyer representing him in these proceedings) may amount to family violence, in itself (see, for example Garrod & Davenort [2018] FamCA 825, [429]), was not argued and thus I make no specific finding in that regard.
Allegations with respect to violence directed at the children
The mother alleges that the father has yanked X’s arm and kicked her in the back. The father gave evidence of holding the child by the arm to prevent her going down stairs, and holding out his foot to effectively guide or shepherd the children when he was sitting on the couch. There is no evidence of any injuries in this regard.
The paternal grandfather and the father’s uncle both gave evidence of him holding one of the children behind the neck with his hand in a way that worried them, although it seems not enough to intervene.
The mother has been deeply concerned that there was sexual abuse, although there is no evidence that this has occurred, and one would expect disclosures to Ms K had the children experienced such things.
The Family Consultant provided a good summary of the father’s relationship with the children at that time, to which I have had careful regard:
111.Overall, it appeared that both children had an enjoyable time reconnecting with their father. Their discomfort settled quickly and from almost immediately upon seeing their father, they both began competing for his attention. Their behaviour suggests an ongoing desire for connection with their father, despite their memories of him hurting them. I reiterate that [Y]’s memories are unlikely to be accurate given her young age, and are more likely a function of ongoing discussion in the household. My impression was that they both desired a relationship with him, but for him not to be aggressive towards them, which is an understandable position. [Mr Clery]’s approach to the children was warm, loving, and appropriately silly. It was apparent that he has capacity to provide them with fun and creativity, and he had retained important information about both children to ask them.
The father placed considerable weight upon the comment of the Family Consultant that:
101.[X] said that her mother does not say much about their father, although she sometimes asks if [X] has noticed that the house is calmer now. [X] spoke about an argument between her parents about the car, explaining to me that her father wanted an expensive car and was going to take money from the house to buy it. She said that he ended up getting it, and: “we weren’t that happy about it.” [X] suggested that the argument was very loud, and she woke and heard it, but that her mother later told her what the argument was about. Her response suggested poor boundaries by [Ms Clery], for [X] to have access to such detailed information about the discord in the relationship. It further suggests an alignment between [X] and her mother, that has likely been either inadvertently or deliberately reinforced by [Ms Clery].
Having regard to the events that the mother has experienced, it is not surprising that some degree of alignment has developed, nor that the mother would be particularly protective of the children. This forms part of the overall circumstances of the case that I take into account.
THE RELEVANT CONSIDERATIONS UNDER THE ACT
Part VII of the Family Law Act 1975 (Cth) (“the Act”) contains the relevant provisions governing parenting decisions. Section 65D provides for a court to make “such parenting order as it thinks proper”. Whilst this section provides a broad discretion, there are many other relevant provisions in Part VII that require consideration. First, the objects and principles of the Part are set out in s 60B. Section 60CA makes clear that the best interests of the child are the “paramount consideration” (which is repeated in s 65AA), and s 60CC provides a lengthy list of relevant considerations when determining the best interests of a child.
Issues relating to parental responsibility are dealt with in Division 2 of Part VII of the Act. Section 61DA relevantly provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
Section 61DA(2)(a) does not focus only upon abuse of a child the subject of the proceedings but includes any other child who was a member of the parent’s family ‘at the time’ of the abuse. The phrase ‘member of the family’ is defined in s 4(1AB), although, only for the purpose of a limited number of other sections of the Act (ss 4AB, 60CC(3)(j) and (k), 60CF, 60CH and 60CI). If the definition in s 4(1AB) applied to s 61DA, then the father and his sister were members of the same family at the time of the abuse as they are relatives as defined in s 4(1AC)(c). Reading the phrase with its ordinary meaning, having regard to the context of the section in the Act, I am satisfied that the father and his sister were members of the same family at the time the abuse occurred as they were siblings living in the one household.
The question then arises as to whether s 61DA is limited to abuse or family violence within the family the subject of the current proceedings, or covers any abuse or family violence within any family of which the parent has been a member. The section is not a penal provision, but part of a legislative scheme to effect the objects set out in s 60B of the Act. The operation of the presumption is clearly designed to reduce disputes in cases where there is no history of abuse, violence or controlling behaviour. Whilst such conduct in other relationships would not usually be admissible in criminal law proceedings, it is relevant in determining the risks to children in family law proceedings. Where the presumption does not apply it remains for the Court to determine the appropriate orders for parental responsibility based on the best interests of the child. The presumption is a procedural advantage designed for cases without the risks raised by the behaviours listed. An interpretation that limits the presumption to cases without evidence of any of the behaviours encompassed in with s 61DA(2) appears to be the appropriate reading of the section within the context of Part VII of the Act. As a result I am satisfied that the father’s abuse of his sister satisfies s 61DA(2)(b) and as a result the presumption of equal shared parental responsibility does not apply in this case.
I also find that the presumption would not apply due to the effect of s 61DA(2)(b) as a result of the father engaging in family violence within the meaning of s 4AB(1). Family Violence is defined as:
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
…
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
…
The statements made by the father to the hospital staff (describing homicidal thoughts), leading to the police warning the mother of a potential risk of homicide at the hands of the father were not made directly to the mother nor overheard by the children. The father says that he did not intend to act upon those statements and that he had not intended anyone but the hospital staff to become aware of the statements. There can be no dispute that it was reasonable for the hospital staff to have formed the view that the mother was at risk and to contact police who then contacted her. Regardless of the father’s subjective intent and the fact that the statements were not directly addressed to the mother, his statements to the hospital staff were at the least within the meaning of ‘other behaviour’: see, for example, YY v ZZ & Anor [2013] VSC 743 and Kirby v Phelan [2003] VSC 43, [12].
The result (albeit the mother became aware of the statements through hospital staff and then police) was that the statements caused the mother to be “fearful”. The mother has had security cameras installed, as a result of this incident, something that cannot have escaped the children’s attention, and therefore the children have ‘otherwise experienced the effects of family violence’ on the mother. In this case I am satisfied that the fear of the mother was not only genuine and reasonable having regard to her circumstances and background, but that it was also objectively reasonable. As a result, for this reason also, s 61DA(1) is not engaged.
Best Interests of the children
As s 60CC contains both primary and additional considerations, many of which overlap, it is convenient to consider each of the additional considerations before turning to the primary considerations.
In this case the children have not seen the father or spoken to him for some time. The Family Report writer was of the view that they would wish to see him, although the elder child appeared to suffer some cognitive dissonance when meeting him for the interviews.
I am satisfied that the children have a good relationship with the mother who currently meets their needs. The children have not seen the father for some years and therefore have little relationship with him at present.
I am satisfied that both parents have participated in the children’s lives prior to separation. The father has been seeking to participate in their lives since separation but not been permitted to do so. Prior to separation the mother was the primary carer and the father the primary income earner, but nonetheless he had participated in their lives.
I am satisfied that the parents have fulfilled their obligations to maintain the children.
In this case I must carefully consider the likely effects upon the children if orders are not made for the children to spend time with the father. It will result in a loss of any substantive relationship with the father and most of his family, which most children take for granted. It will also severely limit the children’s development of relationships with members of many of the father’s extended family.
If time were ordered that is supervised, the father can meet the costs of engaging an appropriate centre to perform that task. Unsupervised time is not practical given the risks to the mother and children, as discussed below.
The capacity of the mother to meet the children's day to day needs at present is not in doubt. The capacity of the parents to meet the children’s emotional needs is a more difficult question. Absent her fears for the safety of the children, she appears to have a clear capacity to meet the children’s emotional needs. However, the impact of the mother’s fears for the safety of the children are significant in this case, well beyond that of a concerned parent. I have had regard to the judgment of the Full Court in Keane & Keane [2021] FamCAFC 1 at [75] and following where many cases are reviewed. I accept that if there are orders for the father to have contact with the children, it is likely to significantly and discernibly impede the mother’s capacity to be available emotionally to care for the children, as described by the mother and the two expert witnesses, which will significantly impact upon her capacity to care for the children.
The father’s capacity to meet the needs of the children is in serious question. His conduct directed toward his sister, although many years ago, and his use of CSAM (such as files depicting rape of a child by her father) provide a clear foundation for a conclusion that there is risk of abuse of the children. I have regard to Ms L’s evidence as to the statistical likelihood of those who view CSAM acting in ways depicted in the images, but also note that complex history in this case including the evidence relating to his sister, Ms C, the threats made to kill and suicide, the Facebook material, and the lack of frankness in material disclosed to his own psychologist and the family report writer. I am persuaded that in the circumstances of this case that there is an unacceptable risk to the children from the father that sounds in concerns as to the possibility of sexual abuse, physical harm and emotional harm. The conduct directed toward the mother also shows an incapacity to indirectly meet the children’s needs as a result of actions undermining the wellbeing of the mother as their primary carer.
The maturity, age and background of the parents and child are noted above: they do not call for particular comment in the context of this case beyond noting the young age of the children and that one is in the age bracket referred to in the file names of the CSAM discovered by the mother, and the other a similar age to the father’s sister when she was assaulted.
There are no particular cultural issues that are significant in this case.
The attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children's parents are significant in this case. The mother has demonstrated appropriate attitudes to the children and the responsibilities of parenthood, in the complex circumstances of this case, taking steps to ensure their safety. The responsibilities of parenthood include working toward a loving and supporting environment for the children, which necessarily involves avoiding undermining those who are involved in caring for the children. The father’s conduct (even if one only has regard to the Facebook posts and his thoughts of homicide and suicide) does not indicate that he has demonstrated appropriate attitudes to the responsibilities of parenthood (and perhaps may not currently have the capacity to do so).
Family violence is a specific factor that must be considered under s 60CC of the Act. The findings above demonstrate significant incidents of family violence by the father. I accept that the fears of the mother are genuinely held, and are a rational response to the conduct of the father. Interactions with the father are likely to be very destabilising for the mother and impact upon her capacity to parent as a result primarily of her fears for the safety of the children.
The two primary considerations under s 60CC are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In essence this case focusses upon the tension between the importance to the children of a relationship with each of their parents and the risks that arise due to the father’s behaviours. It is always a difficult balance when weighing these factors. I have had careful regard to the importance of the children knowing their father and placed significant weight upon this factor, however it does not outweigh all of the other factors in the case. I take account of the certainty of the substantial loss of relationship to the children if no time is ordered, and that the other risks are not certain to come to pass. The risks to the children, both directly, and through the potentially diminished capacity of the mother to meet their needs as a result of her fears should the children have contact with the father, are also significant in this case, as discussed above.
Appropriate orders with respect to parental responsibility must be considered. Whilst the presumption of equal shared parental responsibility does not apply, it is still necessary to determine what orders should be made with respect to parental responsibility.
The provisions of the Act contain no specific mechanism for resolving differences of opinion about issues between the parties. The relationship between the parties in this case (particularly in light of the conduct of the father) makes shared parental responsibility unworkable. In this case orders for equal shared parental responsibility are not in the children’s best interests. The children’s best interests would be served by orders for the mother to have sole parental responsibility for the children. As a result the requirements of s 65DAA do not apply in this case.
Whilst the children’s best interests are the paramount consideration they are not the sole consideration under s 65D. The law with respect to other relevant considerations is not well developed. The interests of parents cannot be ignored, hence the arguments in some cases concerning the relevance of a parent’s right to freedom of movement. Of course, many rights of adult citizens are necessarily constrained when they have responsibility for children, and as a result issues about factors beyond the children’s best interests are not often argued. In this case, however, the mother’s right to a sense of safety and security remains a relevant consideration under s 65D of the Act. Put simply, a person’s interests in living without fear are legitimate and therefore relevant (although not determinative) under s 65D. There are no other significant factors that have been argued in this case that would potentially fall within the broader range of factors that may be relevant under s 65D.
In the circumstances of this case I am satisfied that the potential risks to the children of contact in a setting other than with professional supervisors at a dedicated contact centre presents an unacceptable risk to their wellbeing. Whilst the direct physical risks to the children can be addressed by professional supervisors within a supervision centre, such arrangements do not adequately address the likely impact of contact orders upon the mother and the likely consequential effects upon the children through impacts on her parenting capacity. Nor do such measures fully address the risks of the father potentially acting upon his homicidal or suicidal thoughts, given that he is clearly an intelligent and capable person. I am satisfied that the mother’s concerns and reactions are genuine and that to the extent that she is able to cope, she has agreed to orders for gifts and information. I also am satisfied that should there be even supervised contact that the result will be a significant and discernible impairment of the mother’s capacity to parent. I am satisfied that at this time the consequences to the children of the likely impacts upon the mother’s ability to parent (even if there were only limited supervised time) outweigh the potential benefits of supervised time between the father and the children.
In the overall circumstances of this case I am persuaded that the orders that the mother seeks are currently in the best interests of the children. Whether the father is able to adequately address his difficult circumstances remains to be seen, although significant work would need to be done.
There also appears to me to be considerable force in Ms K’s comment that the mother would need a period of emotional and physical safety before it is realistic to expect that her anxieties may ease. I note that the ADVO proceeding remain on foot in the state courts and are unlikely to be resolved for at least another six months, which I expect will further delay any sense of safety by the mother. In this regard I am satisfied that it is also in the interests of the children that the mother should have the ability to withhold her home address and the identity of the school should she relocate.
As a result, I make orders as ultimately sought by the mother, adjusted to allow her to redact the identity of the school that the children may be attending if she sees fit.
I certify that the preceding one hundred and twenty-nine (129) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Riethmuller. Associate:
Dated: 3 March 2022
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