Connor and Hulett (No 2)

[2010] FamCA 1013

FAMILY COURT OF AUSTRALIA

CONNOR & HULETT (NO. 2) [2010] FamCA 1013

FAMILY LAW – CHILDREN – Case Guardian order discharged

Family Law Act 1975 (Cth)

APPLICANT: Mr Connor

RESPONDENT: Ms Hulett

INDEPENDENT CHILDREN’S LAWYER: Ms Falcomer

FILE NUMBER: BRC 4645 of 2007

DATE DELIVERED: 1 November 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 1 November 2010

REPRESENTATION

THE APPLICANT: In person

SOLICITOR FOR THE RESPONDENT: Mr L. Smith of Smith & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms A.M. McDiarmid

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

Orders

IT IS ORDERED THAT

1. Paragraphs 1, 2, 3 and 4 of the orders made by Justice Murphy on 5 February 2010 (appointing a Case Guardian) are hereby discharged.

2. The final hearing of this part-heard matter be listed to recommence at 10.00am on 14 March 2011 in the Brisbane Registry of the Family Court of Australia.

   AND IT IS NOTED THAT the evidence of the experts, namely Dr O, Dr W, Dr K and Family Consultant Mr P, will occur concurrently and is anticipated to take approximately three hours on 14 March, and it is respectfully requested that the experts appear in person at 10.00am on that day.

   AND IT IS FURTHER NOTED THAT the Independent Children's Lawyer will convey to the three experts referred to, the sentiments expressed by the Court today that the Court will be available to sit at any time between the hours of 8.00am and 7.00pm in order to accommodate any needs of their respective practices.

3. Within 14 days of today, the father shall send by email to the Independent Children's Lawyer and to Mr Smith, and at the same time to the Associate to Justice Murphy, a document that sets out the orders that the father will seek at the hearing commencing on 14 March 2011.

4. The Independent Children's Lawyer shall provide to each of the parties and contemporaneously via email to the Court, a list of such directions as might be required so as to have this matter heard and determined on 14 March 2011.

5. Pursuant to s 121(9)(g) of the Family Law Act, the Independent Children's Lawyer is permitted to publish:

   a.the psychiatric reports by Drs O and W to Dr K and any report by Dr K to Drs O and W;

   b.the Orders and Reasons for Judgment of today to Dr O, Dr W and Dr K.

6. The father shall provide such written authority as might be necessary so as to authorise Dr K and Mr P to have discussions with Drs O and W about the issues perceived by each of them to be relevant to these proceedings.

IT IS DIRECTED THAT

1. The Independent Children's Lawyer shall, on the condition that Legal Aid funding is available to do so, obtain an updating report from Dr K consequent upon Dr K having first received copies of the reports from Dr W and Dr O as referred to earlier in these Orders.

2. For the purpose of the updated report by Dr K, the parties shall each do all such things, sign all such documents, pay equally all such reasonable fees and attend all such appointments and ensure the child B born … July 2001, attends all such appointments, as are reasonably necessary for the preparation of the updated report.

3. The Independent Children's Lawyer is granted leave to issue such subpoena as she considers necessary, to Drs O and W, to attend court or produce documents, with respect to the final hearing in this matter.

4. The Independent Children’s Lawyer is granted leave to issue subpoenae to such other persons and organisations as considered appropriate by the Independent Children's Lawyer, and unless otherwise ordered, leave is granted to all parties to inspect and to the INDEPENDENT CHILDREN'S LAWYER alone TO COPY documents produced pursuant to subpoenae, save any document in respect of which objection to either inspection or copying is made, in which case an application is to be brought before Justice Murphy.

IT IS FURTHER ORDERED THAT

1. At the hearing commencing on 14 March 2011 the father is granted leave to rely upon:

   a.his Affidavits already filed and referred to at the adjourned final hearing;

   b.his Affidavits of 8 June, 24 September and 29 October 2010;

   c.any updating affidavit by him, which he shall file and serve by 11 February 2011.

2. The parties shall file and serve any reply to such affidavit by 25 February 2011.

3. Pursuant to Section 62G of the Family Law Act, an updated report be prepared for the Court by Family Consultant Mr P upon conducting such further interviews and observations as he might consider appropriate, and that such report be available prior to the recommencement of the trial on 14 March 2011 and:

   a.For the purpose of completing the Family Report the Family Consultant has permission to inspect the Court file and all documents/documents related to this matter.

   b.The report writer has leave to read any document produced on subpoena once permission to inspect has been granted to a party or the Independent Children's Lawyer.

   c.The parties shall do all such things, sign all such documents, and attend all such appointments and ensure the child attend all such appointments as are reasonably necessary for the preparation of the Family Report.

IT IS NOTED that publication of this judgment under the pseudonym Connor & Hulett is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 4645 of 2007

MR CONNOR

Applicant

And

MS HULETT

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. I commenced extempore reasons for judgment given on 5 February 2010 with these words: 

   This is a very sad case in which this Court remains troubled about the nature and extent of the relationship that is in the best interests of [the child B], born […] July 2001.  There is little doubt, on the evidence, that the father dearly loves [the child] and that [the child] reciprocates that love for his father.  All else being equal, and all being well, it seems to me highly likely that a fulsome and meaningful relationship between [the child] and his father would likely be ordered by the Court or agreed between the parties.  Unfortunately, a very significant circumstance which intervenes is the father’s mental health. 

2. Those words prefaced an order, made on that date, that a case guardian be appointed for the father in these proceedings.  That order was made some eight months or so after the parenting trial between these parties was adjourned part-heard on 23 July 2009. 

3. At that time, I also delivered extempore reasons and indicated, within those reasons, why the matter was being adjourned. I had before me then a report from Dr K, who is a reporting psychiatrist.  I had also heard evidence from Dr C, who was then the father’s then treating psychiatrist.  There was evidence before me that the father was then subject to an involuntary treatment order pursuant to this state’s mental health legislation. 

4. In the latter of two reports prepared for the Court by Dr K at that time, he provided this opinion:

   I think this man clearly needs to remain under psychiatric care, requires long term medication in view of his recurrent illnesses and there is, in my view, considerable risk in providing him unfettered, unsupervised access to his child in a situation where he is insightless into the nature of his illness and refuses to comply with the treatment.  In these circumstances, I think that the safest alternative is for ongoing supervised access, with which [the father] will clearly vehemently disagree.  However, in the setting of yet another admission to hospital and extensive documentation from the Royal Brisbane Hospital, which notes this man’s recurrent insightlessness, there is, in my view, little choice.

5. That paragraph serves conveniently enough to provide some background to the subsequent events and the application which, ultimately, I have before me today. 

6. In the reasons delivered on the second day of the trial, 23 July 2009, I made reference to the fact that Dr K, after a lengthy period of cross-examination by the father (during which I “detected some exasperation on the part of Dr [K]”), said this:

   Whatever label you put on it, you have a serious mental illness … You have a psychotic illness.

   The doctor then went on to say to the father words to this effect:

   It has pervaded over a period of time … Part of the difficulty is that this has occurred despite community treatment orders … You have not a scintilla of insight into the fact that you have a mental illness.

7. I said in those reasons that, at the end of the first day of the parenting trial, the Court was confronted with the following matters:

   (a)Independent concerns based on observations of the father on earlier occasions as to his mental status.

   (b)Good evidence from a forensic psychiatrist and a treating psychiatrist that he suffered from a serious mental illness, including a psychotic illness, and had little, if any, insight into that fact.

   (c)Uncontroversial evidence that the father was subject to an involuntary treatment order.

   (d)Uncontroversial evidence that the involuntary treatment order was to be reviewed by the mental health review tribunal in the week following the hearing.

   (e)The father had said when he absented himself from the Courtroom toward the end of the first day words to the effect of, “I may be gone some time” and the Court accordingly, at the end of that day, was unsure whether he would return for the second day.

   (f)I indicated that I had myself doubts that the ITO would be revoked by the tribunal (as the husband said would occur).  I specifically asked [the father’s then treating psychiatrist] Dr C about that.  She said she would recommend against its revocation and she considered it unlikely that the order would be revoked [the following week].

8. The father’s own treating psychiatrist at the time, Dr C, said in evidence before the Court, in July 2009, that the risk for the child emanated from the father being, as a result of his condition, “disorganised and preoccupied” which she described as the father “getting to the point where he can’t contain himself to not talk about the mother and these issues in the child’s presence.” 

9. When pressed on whether the father was likely to not contain his thoughts and talk about them in the presence of his son, Dr C said, “the risk is there. Yes, I don’t know whether some of that might dissipate if we can get him better”.

10. As I have earlier said, the evidence of Dr C was that she (then) recommended against the revoking of the involuntary treatment order that was applicable at the time. 

11. It is in those circumstances that the trial was adjourned until the father’s mental health status could be better ascertained.  As a result, the matter was adjourned to 9 December 2009 before me, and, subsequently, as a result of events that had occurred in the intervening period, to 5 February 2010. 

12. On 5 February 2010, I made an order, as I have earlier referred to, appointing a case guardian for the father by reason of the evidence then before me comprising, as an example, that to which I have earlier referred together with other evidence which I referred to in the reasons for judgment given on that day. 

13. Also on 5 February 2010, the father indicated that the further involuntary treatment order that had been made subsequent to the hearing in July 2009 had been lifted.  The father indicated that he was seeing his own psychiatrist (as distinct from the psychiatrist through the Royal Brisbane Hospital) and that he intended seeing his own psychiatrist (Dr W) subsequent to that date. 

14. A number of documents had been sent to Dr K, subsequent to the hearing in July 2009, to which I have earlier made reference, and, in response to an enquiry made by the Independent Children’s Lawyer of Dr K, the doctor said:

    It remains my view that [the father] suffers from a chronic psychotic illness and that he has had, as the Court is aware, multiple relapses and admissions to hospital.  Despite this, his insight remains substantially impaired and there is, in my doubt, no doubt that his capacity to parent his child and indeed his ability to understand the issues involved has been seriously compromised not only by his illness but by his reluctance to comply with any treatment.

15. I said, on that occasion, that on the evidence then before me it was plain that the father suffered from a psychiatric illness of a chronic and debilitating kind described in the evidence then before the Court.  I referred to the desire for all concerned, including the mother, that any such illness be treated in an appropriate way and, if treated in an appropriate way, that a meaningful relationship between the child and his father could hopefully resume. 

16. I said in those reasons, and it again needs to be repeated today in light of at least some of the submissions made by the father, (who again represents himself) that:

    It needs to be pointed out, as I have attempted to point out to [the father] today, that the appointment of a case guardian ought not be seen by him as some form of “punishment” or as some form of criticism.

17. As I indicated to him, the view that I will bring to any parenting proceedings involving the parties with respect to the child, is that, just like cancer or multiple sclerosis or any other serious illness, mental health is an illness.  No party, including the father in particular is to be “blamed” for the fact that he suffers from an illness; it is simply a fact. 

18. The conclusion which was plainly demanded by the evidence before me (despite the findings just referred to and the further finding made on 5 February 2010 which again reiterated a finding made earlier in July 2009) is that:

    [The father’s] disadvantage in that respect is inextricably interwoven with a potential disadvantage for [the child] who, I reiterate, clearly loves his father dearly and seeks a relationship with him. 

19. I sought to make the point then, both orally to the father when he appeared before me and in the extempore reasons which issued subsequently, that the issue before the Court was both the father’s capacity to properly represent himself and thus maximise his best chances, as it were, in the parenting proceedings and obtain orders which might be seen to reflect the caring and loving relationship that undoubtedly exists between the father and the child. 

20. This is a point which I have again sought to emphasise to the father, on more than one occasion, during the proceedings, before me today. 

21. Since the making of that order, there has transpired what can only be described as extraordinarily unfortunate circumstances that have seen, in the space of about nine months, no progress whatsoever having been made toward the appointment of a case guardian for the father. 

22. The Court’s processes, including the legislation and rules which govern it, contemplate a process whereby the Attorney-General appoints a case guardian so as to obviate the very sorts of difficulties that have occurred in this case.  The difficulties encountered by the Independent Children’s Lawyer, Ms Falconer, in having a case guardian appointed in this case, in accordance with the Court’s rules, are deposed to in an affidavit by Ms Falcomer filed in these proceedings. 

23. Those difficulties culminated in correspondence passing between Ms Falcomer and the Attorney-General’s Department and, more recently, in a letter dated 21 September 2010 addressed to the Assistant Secretary of the Family Law Branch of the Attorney-General’s Department by this Court’s Principal Registrar, Ms Filippello.  That letter sets out the difficulties attached to the appointment of a case guardian in this case and annexed, for ease of reference, a transcript of the proceedings before me in respect of the proceedings that sought to appoint a case guardian for the father. 

24. The Principal Registrar said in that letter:

    From the Court’s perspective this matter cannot progress any further until such time as a case guardian is in place.  In effect, it means that [the father] will not be able to spend time with his child.  I note that the order was made by Murphy J in February 2010 and I would ask that, now the Attorney-General has taken up his portfolio, the request made for the appointment of a case guardian be expedited. 

25. On 7 October 2010, a letter was received from the Assistant Secretary of the Family Law Branch of the Attorney-General’s Department, which I have marked as exhibit A in these proceedings. 

26. I will quote the letter in full.  It says:

    Dear Ms Filippello

    Thank you for your letter of 21 September 2010 regarding the Court’s request to the Attorney-General to nominate a case guardian in the matter of [Connor] and for your offer of assistance in the development of the new processes.  The Department is not in a position to provide a nominee case guardian for the Attorney-General, at this time, as new arrangements for the nomination process for case guardians in the Family Court of Australia are currently being put in place.  I understand the Attorney-General will provide the Court with further information as soon as possible and we look forward to working with you on this important area of family law policy.

27. Whatever new arrangements may, or may not, be put in place by the Attorney-General’s Department, as indicated in that letter, they are of cold comfort to the father (and to the Independent Children’s Lawyer in this matter), each of whom have now had to wait nine months before finally receiving an answer that a case guardian would not be appointed. 

28. The ramifications of this for this matter and, ultimately, a resolution of it and the making of orders ultimately considered to be in the child’s best interests, perhaps do not need to be dwelt upon in the course of these reasons.  I simply pause to observe that it is very unfortunate that the case has not been able to progress by reason of that fact. 

29. The father brings an application before me today, filed 8 June 2010, supported by two affidavits by him filed on 8 June 2010 and 24 September 2010.  In that application, the father effectively seeks an order that the order for the appointment of a case guardian be revoked. 

30. In support of that application, as well as the two affidavits just referred to, the father also relies upon affidavits filed from two psychiatrists,  Dr W, earlier referred to, whose affidavit was filed 26 August 2010, and Dr O who is the psychiatrist currently responsible for the father’s treatment, (effectively in the place of Dr C) at the Royal Brisbane Hospital. 

31. Dealing first with Dr O, it is noteworthy that Dr O refers to having seen the father as a patient since July 2009 and, in the last year, having seen him on eight occasions including two occasions in the last six months.  Dr O’s report is dated some six weeks ago.  Leaving aside other issues, which are more appropriately be left to the final hearing of this matter, Dr O says, relevant to the instant application:

    As a treating psychiatrist for [the father], it is my opinion that, on the brief assessment of [the father] on 5 August 2010, that [the father] would be able to manage his own legal affairs.

    If there is any further doubt as to [the father’s] capability to manage his own legal affairs, an independent and formal assessment of his competence should be undertaken.

32. Dr W is, as I have said earlier, a psychiatrist consulted privately by the father.  He says, in a report annexed to his affidavit filed 26 August 2010, that the father first attended him on 30 March 2009, and but that he has since interviewed him on five occasions between May 2009 and 24 May 2010. 

33. The doctor also refers to having reviewed a mental health assessment formed by a psychiatric registrar and other material, including a treatment order review by Dr C, and a report to the mental health court by Dr O dated 19 October 2007, and a further report by Dr O dated 28 October 2009. 

1. Having referred to the father’s history of having suffered from an “acute, severe and brief psychotic disorder” and to a “paranoid psychotic episode in December 2002”, the doctor ultimately opines:

   I am not convinced by the above reports that [the father] has experienced any major mental health disorders or episodes since then.  Since I have known him, he has always presented to me as having a normal mental state.  I consider that he is not disabled from any activity by a mental health disorder.

2. In addition to that material, I permitted the father to give me some information from the bar table about some employment obtained by him, approximately six days ago, which sees him working full time as an engineer.. 

3. Ms McDiarmid, who appears as counsel for the Independent Children’s Lawyer today, suggests that, before making a decision about the removal of the order for a case guardian, that a further review take place with Dr K. 

4. But, I am profoundly concerned about the delay that has occurred in this matter as it will, I think, be already evident from the statements that I have earlier made in these reasons and indeed as is evident from the history of the matter itself and I am concerned to see it progress. 

5. It seems to me I am entitled to take account of the observations of a person in Court, although those observations should, in my view, not be used in substitution for psychiatric evidence before the Court.  The presentation of the father today can be seen to be markedly different from his presentation in July 2009, some of the details of which are included in my ex tempore reasons dated 23 July. It is also different, but perhaps not to the same degree, from his presentation on 5 February 2010. 

6. The father’s presentation today, the fact that he is in employment, and the two psychiatric opinions to which I have referred, seem to me to point to a conclusion that the father is able to manage his own affairs, certainly at least to the extent of being able to conduct the preparation for, and the continuation of, the parenting trial which, as I have said to the parties, I will set down to continue on the first available date that I have, which is 14 March 2011. 

7. For those reasons, and relying significantly upon the psychiatric evidence prepared by Dr W and Dr O, I will revoke the earlier order appointing a case guardian made by me on 5 February 2010. 

8. I take the point behind the submissions, made on behalf of the Independent Children’s Lawyer that the father attend upon Dr K prior to the making of that order. The submission is given force when regard is had, in particular, to the strong statements made by Dr K at the time when evidence was received by him. 

9. It seems to me, however, that those opinions were expressed at a time that can be seen to be in circumstances different to those which exist at the present time. The more up-to-date reports from two independent psychiatric sources suggest to me that, on balance, the desire of the Court to hear and determine the parenting trial, and the issues surrounding time between the child and his father, take place as soon as the Court can possibly accommodate it. 

10. For those reasons, I propose to order the discharge of the orders (1), (2), (3), (4) of the orders made on 5 February 2010. 

11. During the course of submissions and discussions about the future course of this action, in contemplation of the order just referred to being revoked and a trial taking place on 14 March 2011, I canvassed with Ms McDiarmid, and also with Mr Smith, the solicitor for the mother, the prospect of there being concurrent evidence from Drs W, O and K at the further hearing.  Counsel and Mr Smith each indicated that they considered that course an appropriate one. 

12. During the course of argument and discussion about that issue, I attempted to make it plain to each of those two practitioners, and also to the father, that I was acutely aware of the mandates of Part VII of the legislation and the central role of section 60CC in determining the question of the best interests of the child as well as, of course, the Objects, Principles and other aspects of the legislation, including the statutory presumption.  Having referred specifically to my knowledge of those matters and, of course, also to the Full Court authorities in respect of those matters which bind me, I nevertheless used the expression that this was “a one issue case.” 

13. The expression was used as a matter of convenience designed to express the fact that, on any view of the evidence, it seems to me plain, as I have been at pains to point out, that the child and his father have an appropriate, loving, caring relationship.  I have not the slightest doubt that the father is genuinely committed to his son’s best interests and welfare, and would do what he is able in order to promote each of those things. 

14. Furthermore, although I appreciate there are some factual differences and some conflict between the parties, it seems to me on the evidence before me that the mother recognises, firstly, that the child loves his father and that he will benefit from a meaningful relationship with his father, and that he desires a meaningful relationship with his father. 

15. By reason of the psychiatric evidence earlier referred to, and concerns about what has been described as a psychotic episode or episodes during time that the father has spent with the child prior to orders being made, the current order in respect of time between the child and his father requires that time to be supervised. 

16. The father tells me from the bar table today that supervised time at a contact centre has progressed well, albeit that the demands on that service, as indeed the demands on any contact centre, are such that it is not able to offer him the length of time, or frequency of time, which the orders might otherwise contemplate as being in the child’s best interests. 

17. The issue of whether that supervision should continue will be, as it seems to me, directly related to ultimate findings about the risk posed to the child, if any, emanating from ultimate findings about the father’s present and predictable future mental health issues.  It is that which was designed to be encompassed by the expression that this was a “one issue trial.” 

18. It seems to me, bearing in mind the specific provisions of Division 12A of the legislation, and the mandatory principles imposed upon a Court in the conduct of child-related proceedings referred to specifically within that division, that the most beneficial and expeditious manner for the further hearing to proceed is if the three psychiatric witnesses give concurrent evidence, and I propose to put directions in place to give effect to that. 

19. I have, through Ms McDiarmid, sought the agreement of the Independent Children’s Lawyer that she will, in effect, be the liaison point for arranging the pragmatic issues surrounding the appearance by those three experts in the Court. I should make it plain, however, that Dr W is the father’s psychiatrist and is, in effect, offered as a witness in his case and it is for the father to make such arrangements as the doctor might require with respect to remuneration in order to give his evidence on the appointed day and time. 

20. As I understand it, Dr O is an employee of the state and other arrangements should therefore apply with respect to facilitating his attendance.  If a subpoena is necessary for him to attend, or indeed for any of the other psychiatrists to attend, then I would request that the Independent Children’s Lawyer issue the subpoenae to give evidence and produce documents in that respect. 

21. I have made it plain during discussions today that I would, in the usual course, give very favourable consideration to experts whose veracity is not seriously called into question giving evidence by telephone and, indeed, in respect of Dr K who has given evidence in this Court on many occasions, I would expect that he would have experience of orders to that effect being made. 

22. In this particular case, however, I can see that there would be very significant benefit, both for the Court and, I suspect, also for the mother and father in these proceedings, if the three psychiatrists were able to be present in Court for the purposes of giving concurrent evidence in these proceedings. 

23. I am acutely aware that expert witnesses and professional people have demands upon their time which I seek to accommodate. However, if it is at all possible the three doctors should be present in Court to give evidence. I have indicated to the Independent Children’s Lawyer that I will sit as early and late as I reasonably can, so as to accommodate the needs of those doctors, and I have indicated that I will sit, for example, at any time from 8 am at the commencement of the day, until 8 pm at the conclusion of the day, so as to accommodate the doctors’ reasonable professional requirements. 

24. Obviously, sitting at those times provides an inconvenience to all concerned, including the doctors themselves, but I make those times available because I am aware that psychiatrists, in particular, have patients who are dependant upon them and, therefore, the breaking of existing arrangements so as to give evidence in Court creates potential for there to be not only inconvenience but harm to some of those patients. 

25. In the formal orders to be made by me, I will request the Independent Children’s Lawyer to convey the sentiments just expressed in these reasons to each of the individual psychiatrists, together with the offer to sit out of hours so as to accommodate their needs in that respect. 

26. I will, then, formally order the revocation of the order for the appointment of a case guardian as earlier referred to.  I will request the Independent Children’s Lawyer to provide a list of such directions as might be required so as to have this matter continue to be heard, and determined, in three days commencing Monday, 14 March 2011, and I will include in the orders notations and requests to the effect earlier referred to. 

27. In respect of further evidence in these proceedings, I canvassed with counsel whether it was necessary to have the parties, or any evidence from any other witnesses, committed to further affidavits. 

28. Mr Smith indicates that the mother has no new issues to raise and the issues, from her perspective, remain those which existed at the time of the July 2009 hearing. 

29. In order to both reduce the potential burden for the self-represented father, and also to allow these proceedings to occur with the greatest amount of expedition possible, I have indicated that I will hear any updating evidence from the mother and any other witnesses orally, with one exception to which I will now make reference. 

30. Ms McDiarmid submits that, as a result of it now being about 12 months since Mr P, who provided the family report in this matter, has observed the child with the father, that it would be helpful to the Court if further observations could be carried out ahead of the trial. I consider that appropriate.

31. I will, then, order that the s 62G report prepared by Mr P be updated for the purposes of the hearing, and that such interviews as Mr P might consider appropriate be arranged by him with the parties; that observations of the father and the child, as Mr P might consider appropriate, take place for the purposes of that update, and that a further report be prepared so as to be available to the parties at a reasonable time prior to the commencement of the hearing on 14 March 2011.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 1 November 2011.

Associate: 

Date:  12 November 2010