Drummond and Lion

[2010] FamCA 899

FAMILY COURT OF AUSTRALIA

DRUMMOND & LION [2010] FamCA 899

FAMILY LAW – CHILDREN – Parenting – high conflict between parents – interim orders with appointment of expert to assist in resolving conflict – paternal and maternal grandmothers given interim parental responsibility – allegations of sexual abuse – final resolution of most issues but for limited scope issues

Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CC (2), (3), (4A), 60CA, 61C, 61DA and 65DAA

MRR v GR [2010] HCA 4

APPLICANT: Ms Drummond

RESPONDENT: Mr Lion

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission

FILE NUMBER: HBC 957 of 2008

DATE DELIVERED: 7 October 2010

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 20, 23 and 24 November 2009, 2 December 2009 and 8 & 9 September 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Applicant in person with McKenzie friend (the maternal grandmother) for 20, 23, 24 November 2009 and 2 December 2009 and Mr Foster 8 & 9 September 2010

SOLICITOR FOR THE APPLICANT:	Murdoch Clarke
COUNSEL FOR THE RESPONDENT	Mr Blissenden

SOLICITOR FOR THE RESPONDENT: Blissenden Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Van Meer

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

Orders

1. Reasons for these orders be published.

   IT IS DIRECTED

2. The Independent Children’s Lawyer forward a copy of these reasons to
   Dr S.

3. BY CONSENT all extant parenting orders be discharged.

4. BY DETERMINATION from the date of these orders until 30 June 2011 THE MATERNAL GRANDMOTHER (the mother of Ms Drummond) and THE PATERNAL GRANDMOTHER (the mother of Mr Lion) shall have equal shared parental responsibility for L born … June 2003 (“L”) and M born … May 2005 (“M”) and that after 30 June 2011 THE MOTHER and THE FATHER shall have equal shared parental responsibility for L and M.

5. BY CONSENT L and M live with the mother.

6. BY CONSENT L and M spend time and communicate with the father as follows:

   a.During the school term on each alternate weekend (this weekend to be the first weekend of each school term) from after school Friday (or the Thursday if the Friday is a public holiday or student free day) until the commencement of school on the following Monday (or the Tuesday in the event that the Monday is a public holiday or student free day);

   b.For a period of twelve days in the May/June school holidays (commencing 2011) starting at the conclusion of school on the last day of the school term and finishing at 5 pm on the second Wednesday of the school holidays PROVIDED in the event that both L and M move to a State school the father’s time during this school holiday period shall decrease to eight days starting at the conclusion of school on the last day of school term and finishing at 5 pm on the second Saturday of the school holidays;

   c.As to the September mid term school holidays;

   i.For the 2010 September school holidays from the conclusion of school on the last Friday of the second school term until 5 pm 10 September 2010;

   ii.For a period of eight days in the September school holidays (commencing 2011) starting at the conclusion of school on the last day of the school term and finishing at 5 pm on the second Saturday of the school holidays;

   d.During the Christmas school holidays as follows:

   i.For fourteen consecutive nights commencing at 3 pm Christmas Day each year and concluding at 5 pm on the last day of that period;

   ii.For eight consecutive nights (or fourteen consecutive nights if L and M move to a State school) commencing at 5 pm on 21 January in each year and concluding at 5 pm on the last day of that period;

   e.At Easter each year from 10 am Good Friday until 10 am the following Tuesday;

   f.If Father’s Day does not coincide with the father’s time pursuant to (a) or (c) above then for Father’s Day from 5 pm on the evening prior to Father’s Day until 9 am on the day after Father’s Day.

7. BY CONSENT in the event that Mother’s Day falls on one of the father’s weekends then his time with L and M shall be suspended from 10am on Mother’s Day when the Children shall be returned to the mother.

8. BY CONSENT the father may communicate with L and M by telephone between 6pm and 6:30pm each Wednesday and on the Sunday (when they are not otherwise with the father pursuant to this Order) with the father to initiate each such telephone call to the mother’s mobile telephone number upon the mother advising the father by text message that L and M are available to take the call AND that the father may communicate with L and M as stated when they are with the father during school holiday periods with the mother to initiate each such telephone call to the father’s mobile telephone number.

9. BY CONSENT changeover shall occur as follows (unless otherwise agreed in writing by the father and the mother):

   a.For L, during the school term, at her school;

   b.For M until a changeover time falls at the commencement or conclusion of a school day for him, during the school term:

   i.At the commencement of the father’s time with M at McDonalds … at 3.15 pm;

   ii.At the conclusion of the father’s time with M at McDonalds … at 9 am;

   c.For M, when a changeover time falls at the commencement or conclusion of a school day for him, during the school term, at his school;

   d.On all other occasions at McDonalds … at the start of the father’s time and at McDonalds … at the end of the father’s time;

   PROVIDED if one or both of the Children are ill and not at school or are not, as a result, attending school on a changeover occasion the caring Parent shall notify the other Parent at least one hour prior to the changeover time and shall nominate a reasonable alternate changeover location.

10. BY CONSENT on the occasion of each of L and M’s birthdays the Parent with the care of L and M will facilitate and initiate telephone contact between the Children and the other Parent at no later than 6 pm.

11. BY CONSENT both the mother and the father will use their best efforts to assist L and M with their school work and in particular assist with reading, writing and maths tasks and activities as suggested by their school.

12. BY CONSENT in the event that either the mother or the father or the maternal grandmother or the paternal grandmother forms the view that either L or M has been the subject of abuse then that person shall as soon as practicable inform Dr W of the allegation and the father and the mother shall facilitate interviews by Dr W of the relevant Child and any persons he considers appropriate (including the mother, the father, the maternal grandmother and the paternal grandmother) and the mother, the father, the maternal grandmother and the paternal grandmother will follow any recommendations made by Dr W as to management of the Children and matters arising from the allegation of abuse.

13. BY CONSENT in the event that L makes any claim of abuse to the mother or the father or to the maternal grandmother or the paternal grandmother then those persons shall not discuss such claim with L, nor question her or interview her about her claim (unless otherwise recommended by Dr W).

14. BY DETERMINATION both the mother and the father shall not permit either L or M to attend Z Centre (Sexual Assault Support Service) for counselling or other intervention, without the written consent of both Parents or recommendation of Dr W or recommendation from an officer of the Department of Health and Human Services (Tasmania).

15. BY DETERMINATION in respect of order 13(c) and 13(d) and BY CONSENT in relation to orders 13(a) and 13(b), the mother shall authorise L and M’s school to:

    a.Issue to the father a copy of all school newsletters and the Children’s school reports;

    b.Permit the father and/or the paternal grandmother (for so long as she retains parental responsibility for L and/or M) to communicate with the Children’s teachers regarding their respective educational progress and needs;

    c.The mother shall ensure the Children’s school records show the father as a parent of M and a step parent (with parental responsibility) of L. 

    d.The father and the paternal grandmother as contact persons in the event of an emergency.

16. BY CONSENT the mother and the father shall keep the other advised of his/her residential address, landline telephone number and mobile telephone number and of any change to the same as soon after the change occurs as is practicable.

17. BY CONSENT the caring Parent shall keep the other Parent advised of any appointment either Child has with a health professional and/or of the need for either Child to receive medical treatment, as soon as possible after the appointment is made or after becoming aware of the need for either Child to receive medical treatment AND shall authorise the health professional concerned to communicate with the other Parent with respect to the relevant Child’s health condition and the treatment provided or proposed to be provided.

18. BY CONSENT the mother and the father shall for the purpose of resolving matters in dispute with respect to the parenting of L and M including any matters arising from the operation of this Order attend upon Dr W or his nominee and, if it is Dr W, shall follow any reasonable recommendation he makes for resolving the matter in dispute.

19. The mother and the father are restrained from changing the residence of the children from southern Tasmania without the written consent of the other party or order of a Court exercising jurisdiction under the Family Law Act.

20. In the event that either the mother or the father wish to take the children or either of them out of the State of Tasmania, such party will give the other party at least twenty one (21) days notice of such proposed removal including details of airline flight number or sailing details, as the case may be.

21. BY DETERMINATION the mother shall not bring either L or M into contact with Mr E except :

    a.At times the mother is delivering or collecting H to or from Mr E  provided that L and M are in the mother’s constant supervision;

    b.Such other times as are agreed between the mother and the father in writing;

    c.Such other times as is determined by a Court exercising jurisdiction under the Family Law Act.

22. BY DETERMINATION the application for an order for costs by the Independent Children’s Lawyer is dismissed.

23. BY CONSENT all other applications are dismissed and there be no order for costs.

24. Pursuant to section 65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the annexure hereto relating to parenting orders – obligations, consequences and who can help, the particulars of which are included in this Order.

25. The appointment of the Independent Children’s Lawyer be extended for a period of twenty eight (28) days after the date of these orders.

26. The Independent Children’s Lawyer shall within twenty one (21) days from the date of these orders;

    a.Inform the children of the nature and effect of these orders, and I order the parties do all acts and implement such arrangements as to give effect to this order.

    b.Forward a copy of these orders to the Principal of the children’s present school.

    c.Forward to the Secretary Department of Health and Human Services:

    i.a copy of these orders;

    ii.a copy of the reasons upon which these orders are based;

    iii.copies of family reports and single expert reports.

27. The Registry forward copy of these orders be the solicitors for Mr U, Butcher Paull & Calder of Perth Western Australia.

28. All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

    IT IS NOTED

29. Reasons for these orders are reserved and will be delivered subsequent to these orders.

    IT IS CERTIFIED

30. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBF 957 of 2008

MS DRUMMOND

Applicant

And

MR LION

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. Ms Drummond (“the mother”) has three children, L aged seven, M aged about five and H aged six months.  All of the children presently live with the mother.

2. Each of the children has a different father.  Mr Lion is the father of M.  Mr E is the father of H and the mother asserts that Mr U is the father of L.

3. There has been litigation between the mother and Mr Lion (the father) since 2008.  This led to a hearing which commenced in November 2009 which was concluded, with the making of orders, in September 2010.

4. The gap of about ten months between the commencement and conclusion of the trial came about as the parties endeavoured to resolve their differences using the assistance of the Independent Children’s Lawyer and a psychologist, Dr W.

THE ISSUES

1. When the proceedings came back for the conclusion of the hearing in September 2010 the mother was represented by counsel and most of the issues had been resolved.  The mother and father had agreed that L and M live with the mother and that they spend time with the father.  There were a number of areas where there was continuing disagreement.  These being:-

   (a)whether the order that I had made in 2009 that the maternal grandmother and the paternal grandmother have equal shared parental responsibility should continue until 31 December 2010 or 30 June 2011;

   (b)whether there should be a longer period (in respect of the grandparents having equal shared parental responsibility of the children) as suggested by the Independent Children’s Lawyer (based on the evidence of Dr W) or a shorter period as sought by the parties.

   (c)although the parties are agreed that once the grandmothers’ involvement comes to an end there ought to be equal shared parental responsibility with regard to M, the issue is that the father seeks equal shared parental responsibility in relation to L.  The mother seeks sole parental responsibility with regard to L.

   (d)the description of the father in terms of the orders enabling him to have access to and be involved in L’s education;

   (e)whether the children should be permitted or restrained from continuing their involvement at Z Centre (an organisation designed to assist children who have been subjected to sexual abuse)

   (f)whether the mother should be restrained from removing the children from the State of Tasmania without the father’s consent;

   (g)whether the mother should be restrained from bringing the children into contact with her former partner, Mr E.

2. Early in the proceedings the mother asserted that the father or members of his family may have sexually abused one or other of the children.

3. In early 2010 L claimed to have been inappropriately touched or interfered with by the mother’s then partner Mr E.

4. The Independent Children’s Lawyer and counsel representing both parties submitted that on evidence there was no basis for there to be a finding that either child has been the subject of sexual abuse.  They all submitted that there is no risk to the children of being in the unsupervised care of either parent.

BACKGROUND

1. M is a child of the mother and the father. 

2. L is the child of the mother and Mr U, according to the mother.   During the earlier course of these proceedings endeavours were made by the mother to ascertain Mr U’s whereabouts, without success.  The evidence of the mother was that he has had virtually nothing to do with L since her birth. 

3. In an adjournment application made shortly before the commencement of the hearing the then legal representative for the mother raised this as a concern.  Having regard to the allegation of violence made against him by the mother, prior to L’s birth and his apparent lack of interest in L through the whole of her life, I was not concerned that he had not joined in these proceedings. Shortly before the resumption of the hearing of these proceedings an application was made by Mr U to join in these proceedings.  That application was heard by me on Wednesday 8 September 2010.  In that material Mr U raised some questions as to whether he was L’s father.  Subject to that issue being determined he was interested in forming contact with L.

4. By consent that application made by Mr U was not pursued and with the assistance of a Family Relationships Centre and Dr W, arrangements were made to facilitate negotiation as to whether Mr U should have further contact with L, and if so, the extent of any time she spends with him and the extent of any communication between them.

5. Later in these reasons I will discuss the mother’s evidence.  Her evidence with regard to Mr U is troubling and unreliable. 

6. The mother says that in the last three months she has been in contact with Mr U and is anxious for him to resume a relationship with L.  She says that L and Mr U have had numerous telephone conversations and from her evidence the mother is also having significant communication with Mr U.  The mother is planning for the child to meet her father (subject to his outstanding question of paternity).

7. In her affidavit sworn 12 October 2006 and filed 13 October 2006 the mother deposed:-[1]

   ... [L’s] father is [Mr U].  [Mr U] was violent and abusive during our relationship and when I informed him of my pregnancy with [L], he made it clear he did not want anything to do with her because he was still involved with his previous partner with whom he had a child.

   [1] At paragraph 2.

8. The mother resiled from this evidence when pressed in cross-examination.  The mother says that Mr U is now married and has a child of that relationship.  I am concerned that the mother is not as protective of L as is necessary (and to that extent it is part of my reasoning in terms of the determination I have made about parental responsibility). 

9. At the commencement of this hearing in November/December 2009 the mother was pregnant with her third child.  This child, H, was born in February 2010.

10. Her then partner, Mr E, was supportive of the mother at that time.  The mother is no longer in a relationship with Mr E.  She is presently negotiating with him to spend time with H.  The mother proposes that he spends a few hours with H several times a week.  Mr E is seeking to spend five hours with H a few times a week.  The mother wants that time supervised by Mr E’s parents.

11. There have been a number of Police Family Violence Orders made against Mr E.  The first of those was made on 2 October 2009 at the request of Tasmania Police.  I will deal with that Order later in these reasons.  A further Interim Police Family Violence order was made on 15 August 2010 which is to be in place for a period of twelve months although it has been an interim determination not a final determination.  That order prevents Mr E from stalking the mother and her three children, from threatening, harassing or abusing them and from entering the mother’s home or going within one hundred metres of the mother’s home.  There are other aspects to that order.

12. The evidence of the police in relation to the most recent Police Family Violence Order was that:-[2]

    It was at this point that [Mr E] started getting aggressive, saying such things as she [the mother] has destroyed his life and everything is screwed up because of her

    At this point [the mother] has then gone out to the lounge room and thrown a cup at the sink

    [Mr E] has then followed [the mother] back to the bedroom and grabbed her by [sic] long hair and forced her to the ground.  [Mr E] has twisted her [the mother’s] hair in his hand causing considerable pain to [the mother].  [Mr E] has then spat in the [mother’s] face and said, “that’s what you get when you open your mouth”

    [The mother] has managed to get free of [Mr E] by kneeing him.  Once [Mr E] let go of [the mother] he went and sat back in the lounge room.

    [Mr E] has then again started telling [the mother] that she has given him nothing but grief.  [The mother] stated that she didn’t care and had stopped caring ages ago.

    [Mr E] has then got up and left the house.

    … As a result of the assault [the mother] suffered some swelling to her head where [Mr E] pulled her hair and she also suffered a carpet burn to her left ankle.

    [2] Annexure F to affidavit of the father filed 25 August 2010.

1. The children were present in the house when this violence took place.

2. Curiously it is the mother’s evidence (upon which the complaint is based) that because there had not been a final hearing and a determination in the Magistrates Court there was no finding as to what the factual basis was.  It is troubling because these are the mother’s assertions of fact and she seems to be distancing herself from them.

3. The mother is aged 24 and lives at O, a community about in southern Tasmania.

4. About a year or so after L’s birth the father and mother commenced living together.  They were living in O together from July 2004 to November 2004.  During this period the mother fell pregnant with M, and he was born after his parents’ separation in May 2005. 

5. Between June 2005 and May 2006 the father and mother shared the mother’s home with the children.  The father claims that he and the mother were not in a relationship at that time but were simply sharing a house so that the father could spend time and communicate with both children.  The mother’s evidence as to the nature of this relationship seems somewhat different.  This is of little consequence and does not need to be determined.

6. After separation in May 2005 there was significant conflict between the mother, the father and M’s paternal grandparents.  On 1 July 2006 a Police Family Violence Order was issued to the father.  On 28 July 2006 M’s paternal grandparents commenced proceedings in the Family Court nominating the mother and father as respondents but without joining L’s natural father.

7. An interim application came before me on 16 October 2006 and after a defended interim hearing I made orders that the mother have sole parental responsibility for L and the mother and father have equal shared parental responsibility for M.  The children were to live with the mother and the children were to spend time with M’s paternal grandparents and the father each alternate weekend at D and each Wednesday in the Hobart area.  I made other orders also.

8. In those reasons I noted the circumstances regarding L’s father including the efforts that had been made by the mother to try to locate and identify him, which had not been met with success.  The matter was placed in the Magellan list of the Family Court.  A report was ordered from the Department of Health and Human Services which is an exhibit in these proceedings.

9. In August 2008 Dr S sent a report to the Department of Health and Human Services arising over some concerns she had with regard to the children. 

10. As a consequence the mother filed a fresh application in the Family Court nominating herself as applicant and M’s maternal grandmother as first respondent and the father as second respondent.  On the date of filing the proceedings were listed before me and an Independent Children’s Lawyer was appointed and a child welfare report requested.  At the hearing of these proceedings the father conceded that he ought to be treated as the applicant and I adopted that course. During the course of the proceedings I dismissed the original application filed in 2006 and treated the proceedings as HBC 957/2008.

11. The new proceedings came before me on 29 September 2009 and the maternal grandparents were removed as parties.  The proceedings then came back before me on 3 November 2008 and further interim orders were made varying the times that the children spent with the father.  A further consent order was made in July 2009.

12. On 15 July 2009 the father filed an application asserting the mother had contravened the orders.  The father subsequently abandoned that application on the basis that the factual matters contained in that contravention application were facts available in these parenting proceedings. 

13. The proceedings came before me on 12 May 2009 as the first day of a Less Adversarial Trial.  The matter was listed for hearing for three days commencing 20 November 2009 and was removed from the Magellan list as the parties submitted/agreed (which was supported by the Independent Children’s Lawyer) that the investigations in respect of the alleged sexual abuse had produced no evidence to sustain such an allegation.

14. The parties were ordered to file affidavits.  The mother, shortly before the hearing, sought an adjournment.  That application was dismissed. The father did not spend time with L between May 2009 and the commencement of this hearing.  The father relied on evidence from himself, his mother and father.  A number of documents were tendered on his behalf during the hearing days.

15. Part of the material annexed to the father’s affidavit was a copy of the reasons delivered by me in October 2006 which included reference to the mother’s then position relating to L’s father.[3]

    [3] Annexure “F” to affidavit of father filed 30 October 2009.

16. The father plans to complain to the Australian Medical Association in relation to Dr S.  This must be seen in the context that neither he nor his parents have been to see Dr S in relation to the medical certificates.  It is an unnecessary confrontational approach for the father and his parents to adopt with regard to Dr S.

17. As a consequence of the high levels of conflict the proceedings were adjourned for a period of ten months to enable the parties to engage with Dr W, a psychologist, to see whether they would be able to better parent these children.  This proved to be a very sensible course. Dr W became involved and interviewed the parties, the maternal and paternal grandmothers and the children.  The conflict between the parties settled down.

18. The father complained that there were difficulties with telephone communication, however, the parties have now been able to resolve that issue.

19. In early 2010 L complained that Mr E had acted inappropriately with her.  This was the subject of investigation by Dr W and the Department of Health and Human Services.  This matter was again placed in the Magellan list.

20. A report from the Department of Health and Human Services observes that:-[4]

    On the 22 March 2010 the Department received a request for intervention from the Family Court pursuant to s 91B. 

    It noted that the Department had received:-[5]

    Seventeen notifications for [L] and [M] which have been concerns of sexual, emotional or physical abuse. Six notifications had been investigated and only one (emotional) has been substantiated. 

    The enquiries of the Child Protection Services were such that they identified no current risk in relation to the care of the children with the father.  The report identified that the welfare authorities were currently undertaking a protective assessment in relation to H due to “concerns of family violence in the home with Mr [E]”.[6]  It is the view of the Departmental officers that many of the notifications arose out of the conflict between the parties in these proceedings.

    [4] Exhibit ICL5.

    [5] Ibid.

    [6] Ibid.

21. With the assistance of Dr W the parties have resolved most of their difficulties. 

22. They agree that L and M should live with the mother.  Whilst I have concerns about the mother (as is articulated elsewhere in these reasons) I am satisfied on balance that L and M should remain in her primary care.

23. L and M will spend time with the father as set out in the consent orders.  Having regard to the circumstances of these proceedings I am satisfied that those arrangements are in the children’s best interests.  There are various other orders proposed by the parties which also fall into those categories.

24. It is the issues identified at the commencement of these reasons, and in the medium term, and the involvement of Mr U that are left outstanding.  I intend to deal with the outstanding issues between the parties, and hopefully the issues with Mr U can be resolved through the non-adversarial pathways that have been provided to the parties.

25. Any statement of fact in these reasons is to be regarded as a finding of fact unless the contrary intention is clear.

THE RELEVANT LEGAL PRICINPALS TO BE APPLIED IN RESPECT OF PARENTING ISSUES

1. In exercising its jurisdiction in relation to children, the Family Court is bound by the provisions of the Family Law Act 1975 (Cth) (“the Act”). This is a proceeding to which the provisions of Division 12A of Part VII of the Act applies.

2. The object of the Act relating to children is to ensure that the best interests of the children are met. Section 60B(1) of the Act provides that this can be done by:-

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

3. The principles set out in s 60B(2) that underlie those objects are that, except when it would be contrary to a child’s best interests:-

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

4. Each of the parents of a child has complete but several parental responsibility for their child pursuant to s 61C of the Act. This is subject to any court order and must be considered in the light of the so called presumption arising out of the operation of s 61DA of the Act. The section provides that a Court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility[7] for the child, subject to subsections 61DA(2), (3), (4) and (5).

   [7] Parental responsibility is defined by s61B to mean “all the duties, powers, and responsibilities and authority which, by law, parents have in relation to children.”

5. If the presumption is not rebutted and it is in the child’s best interest a court must make an order for equal shared parental responsibility. Logically, if the presumption is rebutted, under s 61DA(2) but a Court determines that it is in a child’s best interest for an order for equal shared parental responsibility, it should be made.

6. The effect of an order which provides for shared parental responsibility, whether equal or not, is set out in s 65DAC. 

7. The question of the allocation of parental responsibility generally needs to be determined before the question of with whom the child lives and/or spends time with, and the degree of communication a child is to have with another person is determined (see s 64B(2)). This is because where the presumption of equal shared parental responsibility applies, the Court must consider whether it is in the best interests of the child to order equal, or substantial and significant time pursuant to s 65DAA. In circumstances where s 65DAA does not apply because the presumption does not apply, there still should be consideration of whether in the factual circumstances, an order for equal, or substantial and significant time is appropriate.

8. Should parties be unable to agree about the living arrangements of a child, a court must, in determining whether it should make orders or in determining what orders should be made, have regard to the best interests of the child as the paramount consideration. Section 60CA of the Act provides:-

   In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

9. The factors guiding how a court determines what is in the best interests of a child are set out under s 60CC of the Act. From 1 July 2006, those best interests are determined under a two tiered approach pursuant to s 60CC, that lists “primary considerations” and “additional considerations”. A court must consider the matters set out in s 60CC unless considering a consent order, in which case the Court may, but is not required to, have regard to the matters set out in ss 60CC(2) and (3) of the Act. The relevant parts of s 60CC reads as follows:-

   Primary considerations

   (2)        The primary considerations 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.

   Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   Additional considerations

   (3)      Additional considerations are:-

   (a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

   (b)the nature of the relationship of the child with:

   (i)each of the child’s parents; and

   (ii)other persons (including any grandparent or other relative of the child);

   (c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

   (d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

   (i)either of his or her parents; or

   (ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   (e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

   (f)the capacity of:

   (i)each of the child’s parents; and

   (ii)any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

   (h)if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture);

   (ii)the likely impact any proposed parenting order under this Part will have on that right;

   (i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

   (j)any family violence involving the child or a member of the child’s family;

   (k)any family violence order that applies to the child or a member of the child’s family, if:

   (i)the order is a final order; or

   (ii)the making of the order was contested by a person;

   (l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   (m)any other fact or circumstance that the court thinks is relevant.

10. A court must consider the s 60CC(2) considerations as “primary considerations”.  This does not mean that they inevitably outweigh the “additional considerations”, but some weight must be attached to the term “primary”. A Court should consider each of the additional considerations separately, then have regard to all of the matters set out in s 60CC (including subsections 4 and 4A) and in the light of those factors, weigh up questions of parental responsibility, face to face time and communication.

11. In that evaluation, if there is to be an order for equal shared parental responsibility (whether arising pursuant to the presumption or otherwise), the Court must consider;

    Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents[8].

    [8] MRR v GR [2010] HCA 4.

12. The Court should then determine time, communication and other parenting issues having regard to the nature and quality of the parent/child relationship and the need to make orders in the best interest of the child.  

THE WITNESSES

1. At the commencement of the trial the mother represented herself with the assistance of her mother as a McKenzie friend.  For the finalisation of the hearing the mother instructed Mr Foster to appear on her behalf.

Dr S

1. Dr S is L and M’s general practitioner.  She has been caring for the children since August 2008.  Prior to that the children were cared for by Dr J.

2. Dr S gave oral evidence in these proceedings at the commencement of the trial.  Dr S and Dr J’s medical files for both children were tendered in evidence.  On those files was a report from a paediatrician, Dr T, dated 25 March 2006 in relation to bruising and abrasions.  In the second last paragraph of his report Dr T observes:-[9]

   … [L’s] characteristics are somewhat “over the top”.  She is a risk taker and many of her falls will be consistent with those characteristics.  I am aware of previous interests from Intake and Assessment and am happy to be involved if your concerns are ongoing.  [The mother] did ask some specific questions with regard to her perceived concerns with respect to “diabetes” on the basis that behavioural changes with sugar but I tried to explain to her that I think this was unrelated to glycaemic control.  Implementation of consistent behavioural strategies will continue to be challenging under the circumstances – but I hope with appropriate support it can be managed.

   [9] Exhibit F1.

3. There was a second report from Dr T on 29 August 2006.  In that report Dr T observed:-[10]

   … Allegations made by the mother appear to be unsubstantiated.

   [10] Ibid.

4. When Dr S first saw the mother and children she gave the mother strategies about setting limits.  She said the mother needed to have consistency and control of the children.  She discussed diet and long term behavioural problems.  Dr S said she suggested the mother try to manage behaviours with healthy food and exercise and better control.

5. From Dr S’s point of view the mother has tried to implement these strategies and Dr S said she has seen a significant improvement in the behaviour of the children including:-

   … they are much more organised, polite and respond to the mother.  Physically they are in good health but the mother has some degree to go.

6. Dr S said that from her observations:-

   The mother and the children have had significant number of illnesses in the last twelve months.  These possibly arise out of [L] attending her first year at school.  She suffered from Scarlet Fever and a number of normal childhood illnesses including flu, coughs colds etc.  The view of Dr [S] is that the children’s attachment is to the mother and if they are sick they need to be at home, quiet and rest.

1. That is consistent advice that she gives.  I accept her evidence in that regard and I accept that the certificates issued by Dr S were issued by her in good faith.  When the mother first saw Dr S, M had Molluscum Contagiosum lumps on his penis. The mother also informed Dr S that L had swelling and pain around the pubic area. 

2. In undertaking her normal enquiries Dr S was given the mother’s perspective of the conflict between herself and the father.  The mother provided Dr S with information about the children’s reluctance to spend time with the father, their sleeplessness, regression to bed wetting and nightmares.

3. Dr S quite properly made a notification to the Department of Health and Human Services.

4. The infection on the child’s penis is not necessarily associated with any sexual abuse. The swelling and pain to L’s lower abdomen was subsequently determined to be a hernia which was treated and has now been properly treated.

5. Dr S was concerned about the impact of these proceedings and the conflict on L in particular.  She was aware that L had run away from school in late 2008 and she had spoken with L’s teacher.  At that time the child was withdrawn and upset. From Dr S’s point of view the child seems more settled at present.  She believes the children are well nourished and the mother presently, shows good basic parenting.

6. The extent of the conflict between the parties and their families can be seen by a letter sent to Dr S by M’s paternal grandparents which is troubling.  The letter dated 2 August 2009[11] asserts that Dr S has given inappropriate certificates and misdiagnosed L’s condition and that of M.  The letter ends with:-

   … Our son [the father] has instructed his solicitor to contact the A.M.A. regarding the legitimacy of your actions.  At the conclusion of the trial involving [the mother] and our son set down for November 2009, regardless of the outcome we will be seeking compensation through courts for the accusations made against us.

   [11] Exhibit ICL1.

7. This letter is outrageous.  This doctor was merely doing what Child Welfare authorities and courts have been urging for decades, that is when they have a legitimate concern (which on the evidence before me Dr S did have such a concern albeit misguided by incorrect and/or inadequate information provided by the mother) they ought to notify the appropriate welfare authorities.  The action of the grandparents in relation to the sending of this letter reflects a deep degree of continuing hostility (as late as August 2009) not only to the mother but also to Dr S.  Dr S contacted her medical insurer and says that she is prepared to continue caring for the children as it is in their best interests.  She is prepared to communicate to the father.  Dr S’s evidence about subsequent telephone calls containing similar threats add to that concern.

8. During her evidence Dr S said that L had disclosed to her on 11 August 2008:-

   they hurt me down there.

   L pointed to her pelvic region.  The evidence of such disclosure ought to have been referred to the appropriate welfare authorities. 

9. Dr S also gave evidence that the mother is pregnant and has been a “difficult pregnancy particularly with regard to the stress of these proceedings”.

10. From the evidence of Dr S and her files it is clear that the mother does not accept that L should see the father, at least in 2008.  I am satisfied of this, on the evidence before me, including the fact that L has not seen the father since May of 2009.

11. Dr S was cross-examined about a medical certificate she gave in relation to L seeing the father in January 2009.  Her evidence, which I accept, was that this was just after L’s hernia operation when L needed to rest and the mother’s home was, in the opinion of Dr S, the best place for her at that time.

12. Dr S was cross-examined about a medical certificate she gave on 24 July 2009.  Her evidence, which I accept, was that the mother arrived at her surgery very late on that day.  The mother said she had been to the Royal Hobart Hospital at Hobart and that the mother had been diagnosed with Swine Flu.  The mother informed Dr S that M had symptoms of influenza. 

13. Dr S gave a certificate to the mother to keep the children home in quarantine at that time.  The qualifications of Dr S were not challenged.  I am satisfied that she acted in the interest of the child.  I am concerned that her only source of information is that of the mother and that at some levels the information provided to Dr S by the mother was inaccurate and/or misleading.

The father’s evidence

1. The father initially gave evidence in accordance with his affidavit of 30 October 2009.  As the mother was unrepresented I directed that the Independent Children’s Lawyer cross-examine the father first.

2. The father gave evidence that he did not believe there would be any harm to L with a change of residence.  This is despite the fact that the longest time the child has spent with him has been nine days.  This is also despite the child not having spent any time with him since May 2009.

3. The father gave evidence that L generally now calls him by his first name.  He said that L knows that he is not her biological father.  This is consistent with the mother’s later evidence.

4. The father was consulted by the mother in relation to which school L or M should go to but he has not discussed the change of school with L’s teacher nor has he contacted the local schools.

5. The father and his parents are building a larger home so that the children will each have their own bedroom.  The father’s evidence is that in the next two to three years he would like to find a partner and at that time his parents would move out.  That would involve another significant change in parenting for both children as the father proposes to continue to work and the care of the children would be left, at least during the day, to M’s paternal grandmother.

6. The father’s evidence is that he observes any mark or bruise on the children.  He has done so since November 2006.[12]  He says upon collection he and his mother check the children, normally in the bath and make notes in a note book of what they have seen.  He takes pictures of bruises and provides copies to Child Protection authorities and his solicitors.  He has not noted any bed wetting or nightmares by L.

   [12] Annexure K to father’s affidavit sworn 30 October 2009.

7. Despite the evidence of Dr S the father did not notice any behavioural problems and did not notice that the children appeared anxious.

8. He concedes his parenting style is similar to that of the mother although at one stage he said he gets the children to bed at 10.00pm, which seems somewhat late compared to ordinary standards.

9. The father gave evidence that the mother’s present partner, Mr E, has been confrontational with him and has made threats to him.  The father said he has been abused by this person and that from time to time Mr E encourages the children not to go with him (the father) even in front of the O Police Station, which is a changeover point. 

10. Having regard to the mother’s evidence about Mr E and my concerns about the veracity of some of her evidence, I am satisfied that Mr E was confrontational and threatening to the father.

11. The father denies that he has touched or inappropriately interfered with L.  Having regard to the evidence of the father, Dr W and the Family Consultant I am satisfied that neither the father nor any other members of his family have touched or inappropriately interfered with L.

12. The father has attempted a Parenting After Separation Course but did not complete it because he felt it made no sense. 

13. The father filed a further affidavit on 25 August 2010 where he set out the current arrangements.  Many of the issues in that affidavit have been dealt with in the consent orders. 

14. The father was given the opportunity to be cross-examined by the Independent Children’s Lawyer and Mr Foster for the mother.  The father was concerned as to the welfare of L and M if they were brought into contact with Mr E having regard to the mother’s evidence.

15. There was no evidence in relation to the mother taking the children out of the State of Tasmania except the father’s concerns about the mother moving home in the past without notifying him.

Report from Children’s Contact Service

1. The Independent Children’s Lawyer tendered a report from the Children’s Contact Service.[13]  I accept that evidence and the oral evidence of the representative of the Service.

   [13] Exhibit ICL3.

Ms C

1. Ms C is a Child and Adolescent Counsellor with Z Centre who gave evidence in accordance with her affidavit filed 20 November 2009.

2. Z Centre is a sexual assault support service.  The purpose of the children’s attendance at Z Centre arose out of the mother’s persistent and ill-based belief that the children, or at least L, had been sexually abused.  I accept the evidence of Dr W that the children’s further involvement with this service, in circumstances where there has been no sexual abuse, would not be in their best interests.  This is not to be seen as a criticism of the work or policies of Z Centre.

3. The mother first contacted the service on 16 June 2009.  The mother told the service that L had made a disclosure to the Contact Centre about being touched inappropriately by the father.

4. The service saw the children and on 1 December 2008 in a counselling session L pointed to a “bear card” which had its hands up in a ‘stop’ position and the child said:-[14]

   … that’s how I feel …  Stop that, don’t touch my bottom.

   [14] Annexure “A of the affidavit of Ms c filed 20 November 2009.

5. She told Ms C that her father had “touched her bottom”.  This was in circumstances where the child had the hernia problem which had been troublesome since at least August 2008 and in circumstances where the mother was, from June 2008 (if not before) looking for excuses as to why the child ought not to spend time with the father.

6. Ms C said that the disclosure was at some levels confusing in part.  I am satisfied that is because it is more likely than not that L had been coached by the mother who was using the pain associated with the hernia to support her allegation that L had been abused by the father’s family.

7. The mother had shared some concerns she had about the children in the children’s presence on 8 September 2008.  The evidence of Ms C was that the mother was waiting outside the door when the children were first interviewed which was a little unusual.  I do not accept the mother’s explanations for that.

8. As Ms C has said, her task it not to investigate the evidence of the children but to give them an opportunity to speak.  I am not satisfied that the disclosure made by L was as seen through the prism of Ms C.  I am satisfied that it was more likely in relation to the pain in the lower abdomen which the child was suffering as a result of her hernia.  It is also significant that when the child saw the father and M’s paternal grandmother at the time the Family Report was being prepared she rushed at both of them and embraced them in a positive and spontaneous way.

9. It is concerning in terms of M’s relationship with the father that at the time of the meeting with the Family Consultant, M greeted the father with big smiles asking him “are you a dickhead?”  The mother denied that this comment came from either herself or Mr E.  This is a very small child and I am satisfied that he was repeating that which he had been coached or that which he had heard in the mother’s home.

Ms K

1. Ms K provided evidence to the Court in her affidavit filed 20 July 2009.  Ms K was L’s teacher in 2009.

2. She provided evidence as to L’s endeavours at schools.  Some of the issues raised by Ms K have been addressed by the parties in their support of L through 2010.

3. I accept her evidence.

Ms G

1. Ms G is the Principal of J Primary School and gave evidence in accordance with her affidavit filed 29 June 2009.  Ms G denied that she had discussions with the mother about removing L from the school and neither did she recall any conversations about L getting better since contact with the father had ceased.  I am satisfied that if she had had that conversation she would have recalled it.  I accept her evidence

The paternal grandmother

1. M’s paternal grandmother (“the paternal grandmother”) was sworn and gave evidence in accordance with an affidavit[15] which was read into evidence.  From her evidence it is clear that she has had a significant role in the care of the children and she has a particularly close connection with L.

   [15] Filed 2 November 2009.

2. The paternal grandmother clearly loves both children but at some levels lacks insight into some of her and her families’ behaviour.  They are advised to take photographs and keep records of bruising but this has gone on for a number of years and must impact on the children and the children must be aware of this.  She does not see this as intrusive or having the capacity of undermining the relationship between the children and their mother.

3. She could not accept that the letter she and her husband sent to Dr S was threatening. She had little insight into why she did not arrange to see
   Dr S.  Her reaction was simply to complain about Dr S rather than see her.

4. The paternal grandmother has not spoken or endeavoured to speak to the mother since 2006 and I am satisfied that the two examples of conflict at changeover were not entirely one sided.  She believes that Dr S prevented the father from spending time with the children.  There is high conflict between the grandmother and the mother and innocent statements (such as the “white witch”) are held as grudges for years.

5. The paternal grandmother said that their house is set up with separate beds for the children and that next year a new house will be built which will be the father’s sole home if and when he re-partners.

6. The paternal grandmother gave evidence that after orders were made in early 2010 she made no further complaints or disclosures to the Department of Health and Human Services.  That evidence was not challenged.

The paternal grandfather

1. M’s paternal grandfather (“the paternal grandfather”) gave evidence in accordance with his affidavit.[16]  There was clear animosity between himself and the mother which he could only see as being one sided.  He gave evidence about the confrontational attitude of Mr E at changeover.  As I have said earlier I am satisfied there was some conflict on the side of the Lion family.  He has not been to see Dr S and has adopted a confrontational approach.  Also having regard to the subsequent events I am satisfied that Mr E is an aggressive person who caused problems and conflict at changeover.

   [16] Filed 2 November 2009.

2. The paternal grandfather conceded in evidence that when M visits without his sister he is slightly withdrawn.  He observed no evidence of bed wetting or nightmares by the children except some year or years earlier with M.

The Family Consultant

1. The Family Consultant, Ms N (“the Family Consultant”) gave evidence in accordance with her report dated 24 March 2009 (which report was read into evidence).  There is no issue about her qualifications.

2. In her report the Family Consultant recommended that the children live with the mother and have time with the father and his family.  She recommended that the parents engage in ongoing joint parenting support therapy.  She also recommended that the children are assessed to determine whether they need additional support following the disruption to their earlier development.  Her recommendations were that the children spend each alternate weekend with the father plus holidays and special days, with regular time between M and the father with consideration being given to a time limited agreement for additional time or alternative arrangements to decrease the intervals between M seeing his father.

3. Ms N says that the children have a clear and strong attachment to the Lion family.  She observed:-[17]

   … [L] saw [the father] and [the paternal grandmother] she became excited, happy and immediately went over spontaneously giving them hugs and kisses.

   [17] At paragraph 23 of the Family Report.

4. I accept that the child has a close and loving relationship with both the father and M’s paternal grandmother.

5. The Family Consultant gave evidence, which is troubling, that when L first arrived she said the following:-[18]

   Excuse me

   and when given attention by the reporter, she said:-[19]

   … I don’t want to go with [the father] … [Mr E] [the mother’s present partner] told me”.  [The mother] quickly stopped [L] with quiet words and a firm look.  [L] continued to her mother “he told me to say I didn’t want to go with [the father]”.  [The mother] said to [L], “he told you to tell the truth, and explained that “it’s up to them what they want … he doesn’t talk about it to them, they ask him questions”.  Later in the afternoon, [the mother’s present partner] said that he had heard [L] had “really dropped him in it” and assured the reporter that he told [L] to tell the truth.

   [18] Ibid at paragraph 21.

   [19] Ibid.

6. The Family Consultant said that L didn’t want to go with the father and wanted to stay with her mother and his partner.  L said she hated the father treating her “like crap”.[20]

   [20] Ibid at paragraph 22.

7. The Family Consultant observed that the child spoke in a rote manner and repeated that she was “treated like crap a number of times”.[21]

   [21] Ibid.

8. I am satisfied that either the mother or Mr E has coached L to say these things to the Family Consultant.  I accept the evidence of the Family Consultant and her views of how this occurred. 

9. I was satisfied that this placed L in a terrible predicament in terms of the relationship between her mother, Mr E, the father and in the longer term her brother M.

10. The evidence of the Family Consultant was that this will eventually cause problems between L and her brother.  Further, that L has been abandoned by her biological father and will soon feel abandoned by the father. Although this aspect appears to be under some prospect of change.  The Family Consultant observed that the children seemed particularly fractious and unsettled.  In the circumstances she was not surprised that L has not seen the father since May 2009.  I accept the evidence of the Family Consultant that if L loses contact with the father it will be a huge loss for her and that the conflict will impact on her schooling in the broader context.

11. In her report the Family Consultant observes:-[22]

    … [L’s] expressed views about having time with [the father] must be seen in the context of [L] being a young and insecure child who is trying to please her mother.  She may also have incorrect information about what is intended by [the father].  Her observed actions towards [the father] and his mother completely negate the content of the spoken word that she did not want to see him”.

    [22] Ibid at paragraph 28.

12. The Family Consultant described the mother as having “a somewhat histrionic aspect in her presentation that suggests an immaturity rather than the rationality that she appeared to strive for.  [The mother’s] anger seemed mainly reserved for [M’s paternal grandmother] and her daughter [Y]”.[23]

    [23] Ibid at paragraph 14.

13. Notwithstanding all of this the Family Consultant said there was a strong biological tie between [L] and her mother.  She said that whilst the mother’s treatment of the child lays the foundation for ongoing conflict and may lead to severance of the relationship between [L] and the father it is not such that she would recommend that the child live with the father.

14. Her evidence, which I accept, is that a change of residence is not the best option because of the history of the relationship and the need to recognise that the father is not the child’s biological father.  If that occurred the Family Consultant said, it would be trading one emotional problem for another emotional problem, that is, “why am I being removed from my mother and maternal grandmother?”

15. The Family Consultant said that the mother’s new child will raise a further dynamic and both M and L need to be available to welcome and know the new baby, who has now been born.

Evidence of the mother

1. The mother was initially unrepresented.  She prepared a document for the hearing which I allowed her to file and rely upon.  She said and I accept that this was prepared with the assistance of her mother.

2. She also relied upon her parenting questionnaire filed 7 May 2009, affidavits filed in relation to interim proceedings on 12 September 2008 and 13 October 2006 (the later two documents being prepared by the mother with legal assistance).

3. The mother was cross-examined by Mr Blissenden in relation to the medical certificate she attained on 24 July 2009.  The mother initially said she had been diagnosed with Swine Flu before that date at the Royal Hobart Hospital.  The hospital records did not disclose that.  The mother then said that she had come into contact with Swine Flu and had some flu symptoms but had not been diagnosed.  The mother prevaricated in terms of that evidence.  I am satisfied the mother did not have Swine Flu. 

4. The mother said that L had run away from school on two occasions.  She said that the teacher informed her of this and the teacher had sent other students (from the primary school) to find the child.  There was no evidence of this on the school record.  I am satisfied that the story was fabricated by the mother.  The mother said she had accused the Lion family of causing bruising and reported the matter to the Police.  At some levels that explains why the father’s family are somewhat concerned about such allegations.

5. The mother denied saying anything negative to the children about the father.  Having regard to the evidence of Dr S and the evidence of the Family Consultant, I do not accept the mother’s evidence in that regard.

6. During the course of cross-examination the mother was caught out on a number of occasions in terms of her evidence.  This includes her definition of “dad” at paragraph 22 of the Family Report as someone other than Mr E. 

7. The mother says that L is terrified about going to visit the father and his family.  The way the mother gave her evidence was “cocky”, histrionic at times and arrogant and over-bearing. The mother said she accepted the decision that L will have a relationship with the father.  I did not accept her evidence in that regard.

8. The mother says that it is L’s choice, L was at that time six years old and is significantly influenced by her mother.  I find that her mother only recently gave her verbal and emotional permission for L to spend time with the father and his family.

9. The mother denied that she told L’s teacher that she was going to Hervey Bay.  I do not accept that the teacher would assume that the mother was removing the child from the school.  It is another example of the mother trying to fashion her evidence to fit in with other witnesses.

10. The mother was represented in September 2010 and relied on her affidavit sworn 1 September 2010.  In that affidavit the mother said:-[24]

    I do not agree that it is appropriate that [the father] have parental responsibility for my daughter, [L].  Her father is [Mr U].  [Mr U] pays child support for [L].  [Mr U] has taken steps to establish his relationship with [L] and has spoken with her on many occasions.  It would be both inappropriate and confusing for [L] to have three parents.

    [24] At paragraph 1.

11. I do not accept the accuracy of that evidence.  I find that the mother is using that relationship as a way to limit the involvement of [L] with the father.  The mother had previously described Mr [U] as violent and abusive.  The mother endeavoured to minimise that earlier evidence to fit in with her current view of the world.

12. I am satisfied, having regard to the evidence of Dr W, that the child will not be confused.

13. The mother says this in relation to her current relationship with Mr E:-[25]

    Although I no longer have a relationship with [Mr E] I have a child to him and if he is to have contact with that child it is not realistic for him to never be brought into contact with [L] or [M].  For example, if I was delivering our child, [H], to him so that he would spend time with his daughter then I would almost certainly have to have [M] and [L] with me in the car.  I would consent to an order that [M] and [L] have no unsupervised contact with [Mr E].

    [25] Ibid at paragraph 9.

14. In 2009 the mother gave evidence of an inadvertent hit to her by Mr E.

15. During the hearing part of a child protection notification was tendered on behalf of the Independent Children’s Lawyer:-[26]

    [26] Exhibit ICL6.

16. In that, the mother allegedly told Child Protection Services that:-[27]

    … [Mr E] is jealous and controlling of [the mother] and apparently needs to know where she is all the time and what she is doing.  [The mother] claims [Mr E] occasionally uses marijuana but in the last week believes he is using Morphine as she was told this by a female and a needle was located in the bedroom.

    It is alleged by [the mother] that about a week ago [Mr E] kicked in the bathroom door, when the children were at home because he wanted [the mother’s] car keys and they were in the bathroom with [the mother].  He kicked the door as the door was locked, due to [the mother] having a shower, [Mr E] said the victim was being a smart arse and she was hiding the keys on purpose to stop him from doing things he wanted to do.

    [27] Ibid at page 4.

17. In relation to the incident in 2009 the report set out that Mr E “went off his head and pushed the victim in the neck area with one hand and pushed her head in the driver’s door window, eight times really hard”.[28]

    [28] Ibid at page 5.

18. The mother denied that Mr E used marijuana and prevaricated in terms of his evidence about the syringe.  When pressed she conceded that a syringe had been found in Mr E’s bedroom at his parent’s home.

19. In respect of the incident in the bathroom, the mother denied that he kicked in the door but conceded that the door was pushed and there was damage to a locking mechanism.

20. What is deeply troubling is that the mother conceded that her head was pushed against the window of a car on at least eight occasions.  This is different to the evidence which she gave in 2009.  L was in the car at the time this assault occurred.

21. The mother’s earlier evidence was untruthful.  She hid from the Court a violent episode which was witnessed by L.

22. During cross-examination the mother denied that the children would have heard the arguments between herself and Mr E.  I do not accept that evidence.

23. I am concerned that the mother puts her own interests and that of her relationship ahead of her care of the children from time to time.  Whilst I am satisfied that she would not allow any physical abuse of the children I am not satisfied that she is aware of the possible impact on the children that can be caused by observing violence.

24. There needs to be some protective measures put in place for the children and the best way, in my view, to do that is by ensuring that the father has a continuing significant involvement in the children’s lives and that for a period of at least the next twelve months the children’s grandmothers should have significant involvement in their care and supervision.

25. The mother prevaricated in relation to the level of violence which she said marked her earlier relationship with Mr U. Fortunately the mother has seen Dr W and has learnt better ways to deal with issues of parenting although there is some distance for her to go.

26. When questioned about the role of the father she denied that he was a father figure.  I do not accept that evidence and I am satisfied that the father is a father figure for L and there is a strong relationship between them.

27. The mother is belligerent when giving evidence. The mother’s evidence is unreliable.  It needs to be supported by other evidence for it to be given any credibility. 

Mr E

1. Mr E gave evidence orally.  The mother did not file an affidavit on his behalf.  He was not an impressive witness, he prevaricated and at times his evidence had a sense of recent invention, if not a fabrication.

2. Mr E commenced a relationship with the mother in about December 2008.  He said that the mother had not at any times expressed concerns about L’s well-being with the Lion family.

3. Mr E said that up until recently (and I will deal with this later in these reasons) he and the mother had spent increasing time together and had reached an average of three days per week.  He said earlier in the year, perhaps seven to eight months ago, L had been waking up (on three of four occasions) with nightmares.  Mr E said he was a light sleeper.  He said she screamed out words similar to “don’t touch me”.

4. He said after one of these events the following morning, when the mother was not present, he said to L “what’s wrong”.  The child said “[Lion] has touched me”.

5. Mr E said he had not told anyone about that disclosure until he gave evidence on 2 December 2009.  He said that he had been contacted by of Officer R of CIB.  He said he had spoken to him when he had rung to speak to the mother.  Mr E said when he received that call Mr R told him that L had made a disclosure at the Children’s Contact Service.  Mr E did not tell this police officer of the disclosure allegedly made to him by L.

6. About two days later Mr R telephoned again and spoke to the mother.  After that conversation the mother complained to Mr E that he had not informed her about Mr R’s call.  Mr E conceded that he had not informed the mother of that call and again did not inform the mother of the alleged disclosure.

7. Having regard to the whole of Mr E’s evidence and his demeanour and other comments I have made in relation to it I find his evidence unreliable.

8. A Police Family Violence order is in place between Mr E and the mother.  Both the mother and Mr E said this was a mistake.  Mr E said that he was driving his car and had hold of a hand grip at the top of the driver’s window.  He said he went around a corner and he broke a bone in his wrist.  He said he brought the car to a stop but grabbed the mother.  He does not know how he grabbed her.  Apparently somebody contacted the Police, they attended, he was taken to the Police Station and a Police Family Violence Order was put in place.  He does not recall pushing the mother’s head against the car window. I do not believe him.

9. From cross-examination it appears that he was going to be charged with breach of that Police Family Violence Order. 

10. His memory in relation to this was poor notwithstanding that he attended at the Magistrates Court on 1 December 2009 (the day before giving evidence in this court).  I have concerns about his frankness, and that of the mother in respect of this incident.

11. Mr E was cross-examined in relation to the statement made in the Family Report where L is alleged to have said that she did not want to go with the father as “[Mr E] had told her”.  Mr E said he did not direct the child to speak this way but told her to be honest.  He said the child did not know why she was attending and even he thought it was a counselling appointment.  His evidence in this regard is unconvincing.  Mr E denied that he used the word “crap” and denied that he had called the father, or heard the mother call the father, “a dickhead”. I am satisfied that M asked his father the words asserted in paragraph 24 of the Family Report and that this either came from the mother or Mr E.

12. The evidence of Mr E in relation to the three incidents at changeovers is unconvincing.  At one stage he said, at the first changeover, the arrangements were that L was going to go.  This is despite the mother attending and producing a medical certificate saying that she was unable to go.  His evidence in that regard was impeached.

13. At the conclusion of the hearing on 2 December 2009 submissions were made by the Independent Children’s Lawyer in relation to the children.  It was an agreed fact that the time both children spent with the father on the weekend of 27 November 2009 went well. 

Dr W

1. The Independent Children’s Lawyer had made enquiries of a psychologist, Dr W, who could provide family intervention in respect of the conflict that these children have endured.  Dr W would need to undertake an assessment of the parties and each of the parties needed to get a referral from their general practitioner as to their mental health plan.

2. As a consequence I adjourned the proceedings part-heard to 2010 and made interim orders.  I gave leave for the parties to come back to the Court on short notice.

3. In 2009 I arranged for M’s grandmothers to have parental responsibility to see whether their involvement could diminish the conflict. Dr W gave oral evidence to the Court on 8 September 2010. His qualifications were not challenged.

4. Dr W had been involved with the parties since December 2009 and had numerous meetings with them and the children.  Sexual allegations were raised by L against Mr E.

5. Dr W said in his view the allegations were not true and that L had a history of exaggeration.  He said L had strong anger towards Mr E including saying things like “I don’t like [Mr E]”, “I don’t want him to be around”.

6. Dr W spoke with Mr E and at that time he was still living with the mother.  It was the view of Dr W that the allegations made by L were false and was put in place because of her dislike of Mr E.  Having regard to the violence viewed by L, that is an understandable concern.

7. I accept the evidence of Dr W that it was unlikely that L had been sexually abused by Mr E.  However, L has been exposed to violence in the presence of Mr E.

8. Dr W put in place containment arrangements.  Dr W was concerned that M’s paternal grandmother still believes the truth of the allegations made against Mr E.

9. L had difficulties at school and with the assistance of Dr W the parties were able to reach an outcome to address those issues.  They have been dealt with in the consent orders which are appropriate.

10. Dr W is concerned that the children are still attending group programs at Z Centre.  His concern is that it may encourage L to make false disclosures and that it is not, in all of the circumstances, the best place for her to obtain counselling.  He said counselling is available for L at Centrecare and through him.  I accept that evidence.

11. Dr W has assisted the parties in reaching substantial agreement in most matters.  Dr W’s evidence was that whilst the parties are not particularly motivated they have been compliant and that the mother now recognises that there is a close relationship between L and the father.

12. Dr W’s evidence is that L wants to maintain that relationship.  I accept that evidence.

13. In terms of the involvement of the grandparents, Dr W’s view is that given the issues still in place between the parties and the need to ensure the continuation of the relationship between the children (in particular L) and the father, that leaving the grandmothers as having parental responsibility is a child focused approach and meets the needs of the children.  I accept that evidence and intend to adopt that course.  In many ways Dr W has acted as a problem solver.

14. Dr W was cross-examined by the mother’s counsel in relation to some aspects of his evidence however his views remained in place.

15. I am satisfied with the veracity of the evidence of Dr W.

ALLEGATIONS OF SEXUAL ABUSE

1. The first allegation of sexual abuse was contained in the letter from Dr T of 29 August 2006.  The mother asserted that there had been a disclosure by L that the father’s sister, Y, had “handled her [L]” inappropriately.  That claim was not substantiated.

2. What is of concern is that when the mother filed an affidavit in the then proceedings on 13 October 2006 (sworn 12 October 2006) she did not make any complaint about Y sexually abusing L.  She made a series of other complaints about the father’s behaviour and the behaviour of members of his family.

3. Yet on 28 November 2006 the mother told the police that Y had touched L.  Exhibit ‘F2’, page 3 at paragraph 8 says:-

   [The mother] is of the firm belief that her children are assaulted by [the father’s] mother and sister during access times.  The file note says that [the mother] attended [O] police Station at 7.00pm on 27/11/2006.

4. I am satisfied that these allegations by the mother are a fabrication.

5. The mother persisted with this complaint to Dr S in August 2008 and when Dr S made a notification she regarded it as vindication of her complaint.  It is significant that the Family Consultant, at paragraph 14 of her report notes this of the mother:-

   … The doctor believes that the children had been interfered with.

6. It is clear on the evidence of the doctor that she had a concern and passed it on but formed no view that L had been sexually abused.  The expansion of that from the mother to “the children” is also consistent with what the mother said to Ms C when in her report of 19 August 2009 the mother expressed concerns about “her children having swollen pelvic regions”.  The mother exaggerated what had happened.  L was diagnosed with her hernia problems on 18 September 2008 and it is clear that the mother did not accept that as an explanation for the comments made by the child.

7. The mother consented to make up time on 20 July 2009 notwithstanding the disclosure made at the Children’s Contact Centre in May 2009.  The mother said she did not know.  I do not accept her evidence in regard to that denial.

8. In her initial affidavit the mother makes serial complaints against the father and his family and their involvement with the children.  I have reservations about the extent of that evidence although I am satisfied that there is conflict and poor communication between the mother and M’s paternal grandmother.  There is an element of exaggeration and fabrication in that evidence.

9. The mother had complained about bruises, which she alleged was caused by the father or his family, to Dr J and this had been investigated by Dr T.  The consequence of this allegation, of which I have some concerns, was that the Lion family now document every bruise and mark on the children which they regard as suspicious.  This has gone on for a year and is not child focused. 

10. The mother does not trust the Lion family and the Lion family do not trust the mother.

11. The mother made serial complaints and then in August 2008 a new doctor came onto the scene.  The mother provided to the doctor the concerns she had about L’s alleged reluctance to attend visits, a disclosure made by L that she had been hurt in the groin area by the Lion family, the children’s sleeplessness after visits, bed wetting and nightmares of L.

12. She also reiterated the injuries that she had observed to the child.  Dr S asked L what had happened and she pointed to her groin area and she described hurt.  Dr S quite properly reported the matter to the Welfare authorities.  It was discovered that the child had a hernia in the area which represented the hurt.

13. The mother complained about a subsequent disclosure to Ms C on 1 December 2008.  That disclosure was consistent with the child suffering from the hernia problems.  I am not satisfied that there is any credible evidence of the child being sexually abused or in there being any sexualised behaviour to her whilst in the care of the father or his family.

14. This is an exaggeration by the mother in keeping with her desire that L have little or nothing to do with the father and his family.

15. I am unable to determine whether this is a genuine belief held by the mother or whether it is done maliciously or mischievously. 

16. On 2 December 2009 the mother raised an issue about Mr Blissenden, the legal practitioner acting for the father.  She said she had learnt over the previous few days that Mr Blissenden’s firm had acted for her partner (Mr E who was due to give evidence) between June 2008 and May 2009.   This had been in relation to family law matters.

17. This was the forth day of hearing and no issue had been raised earlier notwithstanding that I had requested that Mr E be available to give evidence very early in the hearing.

18. Mr Blissenden said he had not acted for Mr E although other members of his firm may have.  Mr E was a witness and I could not identify, nor could the mother identify, any information which Mr Blissenden may have been privy to which could be disclosed or any other issue of conflict.  Accordingly, Mr Blissenden continued to represent the father.

1. In early 2010 L complained that Mr E acted inappropriately with her.

2. The evidence in relation to the alleged sexual abuse of L by Mr E is not particularly strong.

3. The allegations have been made in the circumstances of the break-down of the mother’s relationship with Mr E and are not believed by the mother or Dr W and are (apparently) denied by Mr E.  The allegations are believed by the paternal grandmother and, at some levels, the father.

4. In keeping with the jurisprudence in regard to such allegations, I do not intend to make any findings that it did not happen and I have a lingering doubt.

5. Having regard to the violence displayed by Mr E to the mother in October 2009 and at the time of the break-up of the mother and Mr E in 2010 combined with those lingering doubts, I would not permit either of the children to be left in the unsupervised care of Mr E nor would I be satisfied that the children’s interests would be protected if the mother reconciled with Mr E.  Accordingly, I have made orders substantially in accordance with that sought by the father which is protective of the children.

SECTION 60CC(3) FACTORS

(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

1. I am satisfied that the children and particularly L, have expressed a view that they wish to see the father.  Having regard to the age and maturity of L I give some weight to that view.

(b)the nature of the relationship of the child with:

(i)     each of the child’s parents; and

(ii)other persons (including any grandparent or other relative of the child);

1. The children have a close relationship with both the mother and father.  Despite the mother’s endeavours to alienate L and, at times, M from the father, this has not been successful and the children enjoy his company and relate well to him. 

2. The children are primarily cared for by the mother.

(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

1. I am not satisfied that either parent will encourage a relationship with the other parent.  With the assistance of the grandparents a relationship has been maintained.  The orders that are proposed in terms of where the children live and how often they see the father will enable the relationship to continue despite the parties’ antipathy to each other and the concerns I have in respect to the parties as articulated elsewhere in these reasons.

(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i)       either of his or her parents; or

(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

1. There is not likely to be any significant change in the circumstances except, hopefully, that the conflict between the parties will diminish. There is likely to be a change in terms of L forming a relationship with her biological father, subject to an enquiry as to that status and the allegations made by the mother of his violence in the past.

(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

1. There is no practical difficulty and expense in relation to the children spending time and communicating with each parent. 

(f)the capacity of:

(i)each of the child’s parents; and

(ii)any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

1. I have concerns about the mother’s capacity to parent however with the input of her mother, M’s paternal grandmother, the father and Dr W I am satisfied that the needs of the children can be met and they can be protected from the mother’s sometimes belligerent style and sometimes less than frank approach.  I am concerned the mother is sometimes not as protective of the children as she ought to be.  However, having regard to the family members who will be involved in the care of the children and the involvement of Dr W I am satisfied that the children are protected in this regard.

2. The father does not have the same level of parenting skills as the mother although I am satisfied he is able to care for the children albeit with the assistance of his mother at least in the early periods of time.

(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

1. I have had regard to the maturity lifestyle and background of both children in the circumstances in which these parents have placed them.

(h)    if the child is an Aboriginal child or a Torres Strait Islander child:

(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii)  the likely impact any proposed parenting order under this Part will have on that right;

1. This is not a relevant consideration in these proceedings.

1. the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

1. Each of the parents has displayed some poor parenting approaches in the past.  However with the assistance of the grandmothers and Dr W and each parent keeping a careful watch on each other, I am satisfied that each of the parents will maintain their proper attitude in terms of parenting, subject to comments I have made earlier.

(j)       any family violence involving the child or a member of the child’s family;

1. There are Police Family Violence Orders with regard to Mr E.  I am troubled by the violence which the children have witnessed.  I intend to make an order restraining the mother from bringing the children into contact with Mr E except at changeovers.  I am concerned the mother may “forgive” Mr E and commence residing with him.

2. Having regard to the evidence of Dr W that would be devastating for L and is likely to have a detrimental effect on M.  Some of the language and abuse which the mother endured at the hands of Mr E (as set out in the application for Police Family Violence Order) is deeply troubling.

3. The orders will prevent the mother from resuming cohabitation with Mr E and put the children in a position where they do not spend any time in his presence except for the purpose of handing-over of H.

(k)any family violence order that applies to the child or a member of the child’s family, if:

(i)       the order is a final order; or

(ii)     the making of the order was contested by a person;

1. The mother has previously had a Police and Family Violence order against the father which has expired.

2. I have discussed elsewhere the Police and Family Violence Orders with regard to Mr E.

(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

1. I am satisfied with the consent arrangements and the arrangements which I will put in place will mean that the parties are unlikely to come back to court.  The issues are relatively narrow.

(m) any other fact or circumstance which the court thinks is relevant.

1. I have considered all of the relevant evidence before me.

SECTION 60CC(4) OF THE ACT

1. Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:

   (a)has taken, or failed to take, the opportunity:

   (i)to participate in making decisions about major long‑term issues in relation to the child; and

   (ii) to spend time with the child; and

   (iii) to communicate with the child; and

   (b)has facilitated, or failed to facilitate, the other parent:

   (i)participating in making decisions about major long‑term issues in relation to the child; and

   (ii)  spending time with the child; and

   (iii)  communicating with the child; and

   (c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.

   (4A)If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

2. I have had regard to the extent of which each of the parents has fulfilled or failed to fulfil their responsibilities as parents both before and after separation and I have considered those in the light of these determinations.

3. I have considered whether there ought to be equal time or significant or substantial time.  That is not sought by the parties and having regard to all of the circumstances in this case I am satisfied that the arrangements proposed do meet the best interests of the children and that it is not necessary for there to be significant or substantial time or equal time to meet the needs of the children.

4. I have considered all of the relevant factors under s65DAA of the Act.

5. Having regard to the evidence I am not satisfied that the mother should have sole parental responsibility for L.  I do not intend to reiterate or repeat all of the material set out earlier in these reasons but I have had regard to it in coming to that determination.

6. The children’s grandmothers ought to continue to have parental responsibility for the children until 30 June 2011.  In that regard I have accepted the evidence of Dr W.

7. The father seeks an order that the mother not take the children out of the state of Tasmania.  There is limited evidence in respect of this submission.

8. Tasmania is part of the Commonwealth of Australia and there is a broader legislative provision to prevent children being taken out of the Commonwealth of Australia.  There is little evidence upon which to base the orders sought by the father.

9. This has to also be seen in the context that L may soon have a relationship with her putative biological father who lives in Western Australia.

10. It seems to me that the better course in these proceedings is for parties to inform the other of any proposed travel. If the travel is unwarranted, unnecessary or in breach of orders then it is a matter for the non-travelling party to make such application to a court exercising jurisdiction under the Act as that party considers appropriate.

11. If any application is unwarranted or vindictive or petty it is likely to be met with a costs order.

12. In terms of school I have made provision in these reasons for the father to be shown as L’s step father but with equal shared parental responsibility so that his significant role in her life continues.

13. There was an application by the Independent Children’s Lawyer for the parties to meet her costs in respect of the proceedings.

14. The precise amount of those costs were not known although they would have been significant bearing in mind this was a trial which ran over about five days and involved significant expert evidence.

15. The application was opposed.

16. Initially the Independent Children’s Lawyer sought to reserve costs however counsel for the mother opposed this course as it would involve the mother in additional costs.  Accordingly I heard the application.

17. The Independent Children’s Lawyer’s application was based upon a number of factors:-

    (a)firstly the significant amount of costs involved; and

    (b)the parties were employed.

18. These proceedings would have run another day or so had they had not been settled.  The parties, with the assistance of the Independent Children’s Lawyer and Dr W, settled most of the contentious issues in respect of these proceedings.

19. The mother is in receipt of Centrelink benefits and it was only through the assistance of her mother that legal assistance was provided to her.  Any costs order would be unlikely to be able to be met by the mother.

20. The father works but has no significant assets and has spent tens of thousands of dollars in these proceedings, much of which came from his family.  He has no assets upon which to fund any costs order.  Neither the father or mother were in receipt of legal aid.

21. I have made criticisms of the mother in terms of her evidence and to a significantly lesser extent the father. However each of them had to deal with allegations of sexual abuse and this was a matter which was complex and was at various times included in the Magellan list.

22. The conduct of the parties since November/December 2009 has been child focused as is shown from the significant settlement the parties have achieved.

23. The proceedings were not necessitated by the failure of either parent to comply with previous court orders (although they from time to time did not comply with court directions).

24. Neither party has been unsuccessful and there was no evidence of any offers.

25. Having regard to these facts and circumstances I determine that there ought not be an order for costs in favour of the Independent Children’s Lawyer.

26. In these proceedings orders were made on Thursday 9 September 2010 and sealed copies of the orders were handed to each of the parents in court by a court officer. 

27. These reasons I delivered subsequent to the making of the orders.

28. I have dealt with the issues of my concerns about Mr E and the reason why there ought to be an order in place protecting the children from his violent behaviour.

29. Similarly I have made comment in relation to Z Centre and the children’s counselling at that organisation bearing in mind the evidence of Dr W.

30. Having regard to all of those facts and circumstances I make the orders set out at the commencement of these reasons.

I certify that the preceding two hundred and fifty four (254) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on the 7 October 2010.

Associate:     

Date:   7 October 2010