Garrod & Davenort
[2018] FamCA 825
•12 October 2018
FAMILY COURT OF AUSTRALIA
| GARROD & DAVENORT | [2018] FamCA 825 |
| FAMILY LAW – CHILDREN – Parenting – second set of final parenting orders in six years – where necessity to keep child safe from psychological harm takes precedence over the benefit to the child of having a meaningful relationship with the father. FAMILY LAW – FAMILY VIOLENCE – where father’s violence to the mother was physical, psychological and coercive controlling prior to separation – where father continued to coercive controlling violence to mother post separation – father’s physical and psychologically harmful violence to his partner in a relationship subsequent to separation with mother. FAMILY LAW – FAMILY VIOLENCE – where child was exposed to father’s violence towards mother and his later partner. FAMILY LAW – FAMILY VIOLENCE – where conduct of the parenting proceedings by the father is considered to be a form of family violence. FAMILY LAW – FAMILY VIOLENCE – where mother’s allegation of father’s physical harm to child was a matter of genuine belief – where allegation of physical abuse by father to child (bruising), not accepted. FAMILY LAW – UNACCEPTABLE RISK – no finding of unacceptable risk of abuse in relation to alleged physical abuse of the child by the father – finding of unacceptable risk of psychological abuse by father of mother and child. FAMILY LAW – EXPERT EVIDENCE – where Regulation 7 Family Consultant’s assessment in three s62G(2) reports over six years failed to identify or to appropriately address father’s violent behaviour. FAMILY LAW – CHILDREN – Parenting – where supervised time does not afford child sufficient protection - where spend time orders suspended during the trial and father restrained by final order from bringing further parenting proceedings for spend time or residence for a further two years (with effect that child will not spend face to face time with father for a total of four years) whilst father undertakes therapy for perpetrators of family violence – where it is inappropriate to introduce sped time regime by self-executing order – where spend time regime will not be introduced without favourable assessment by the court of the success or otherwise of father’s therapeutic treatment. FAMILY LAW – COSTS – applications can be made by written submissions |
| Family Law Act 1975 (Cth) | |||
| M v M [1988] HCA 68 Briginshaw v Briginshaw (1938) 60 CLR 336 Amador & Amador [2009] FamCAFC 196 T & N [2003] FamCA 1129 R v R: children’s wishes [2000] FamCA 43 | |||
| APPLICANT: | Ms Garrod | ||
| RESPONDENT: | Mr Davenort |
| INDEPENDENT CHILDREN’S LAWYER | Legal Services Commission of South Australia |
| FILE NUMBER: | ADC | 4343 | of | 2012 |
| DATE DELIVERED: | 12 October 2018 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 13, 14, 15, 16, 17 February 2017, 20, 21, 22, 23 February 2017; 24 August 2017; |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Lewis |
| SOLICITOR FOR THE APPLICANT: | Adelaide Family Law |
| COUNSEL FOR THE RESPONDENT: | Ms Lindsay for 13 - 23 February 2017: Ms Green for 20 - 24 November 2017 |
| SOLICITOR FOR THE RESPONDENT: | Dixon Gallasch Pty Ltd |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Lewis |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission of South Australia |
Orders
All previous parenting orders in relation to the child B born … 2010 (“the child”) be and are hereby discharged.
The mother have sole parental responsibility for the long term care, welfare and development of the child.
The child live with the mother.
For the avoidance of doubt, the mother is solely responsible, as between herself and the father, for decisions regarding:-
(a) where the child lives;
(b)when and how the child travels, including being able to apply for passports without the consent of the father;
(c) the health and education of the child.
The father not communicate with the child other than to send a card and/or present to the child on two occasions per year (including the child’s birthday). Such items to be sent by prepaid post addressed to the mother at an address provided by her to him, packaged in a way that the mother can read any correspondence and examine any gift. For the avoidance of doubt, whether the communications are given to the child is a matter solely within the mother’s discretion and the mother is not required to return to the father items which she declines to make available to the child.
The father be and is hereby restrained from making any parenting application for time or residence in respect of the child for a period of two (2) years without first obtaining leave of a judge of this Court to do so.
The father be, and is hereby, restrained by injunction from knowingly attending at or within the vicinity of:-
(a)the residence of the mother and/or the child;
(b)the mother’s work place;
(c) the school at which the child is attending from time to time;
(e) any place at which the child works or is employed or attends for recreational purposes.
If the child expresses a wish to communicate with or spend time with the father, the mother at her sole discretion contact the father in writing and endeavour to organise the communication or time to be spent on terms acceptable to the mother.
The father spend time with the child in accordance with any agreement reached between himself and the mother and confirmed in writing between them.
The mother and the father are permitted to provide a copy of this Order and/or these reasons for decision to the following persons:-
(a)The principal or proper officer of any school at which the child is enrolled as a student;
(b)Any health professional or social scientist who treats the child, the mother or the father (or any of them);
(c)Any legal practitioner for the purpose of obtaining advice.
The mother provide the father with a current photograph of the child not less frequently than every six (6) months.
The appointment of the Independent Children’s Lawyer be discharged as and from the expiration of the period in which a Notice of Appeal can be filed without leave.
All extant applications be and are hereby dismissed and this matter be removed from the docket of the Honourable Justice Bennett.
In respect of costs:-
(a)Any party wishing to make an application for costs, make file and serve such application within twenty one (21) days and support it by evidence of an estimate of costs claimed including, but not necessarily limited to, a calculation of such costs in accordance with the Itemised Scale of Costs at Schedule 3 to the Family Law Rules 2004 (Cth);
(b)Any party who is served with an application for costs against him/her, file and serve an affidavit setting out any dispute as to quantum of costs within fourteen (14) days of service upon him/her of the application;
(c)My Associate advise the parties of the listing of this matter for oral submissions as to liability for costs (estimated to take not longer than one hour);
NOTING THAT any costs so ordered may include the costs of making the application for costs.
IT IS FURTHER ORDERED:
That pursuant to sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars and 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 Fact Sheet attached hereto and those particulars are included in these orders.
IT IS DIRECTED:
That all material produced under subpoena remain in the Registry pending further order.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Garrod & Davenort has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: (P)ADC 4343 of 2012
| Ms Garrod |
Applicant
And
| Mr Davenort |
Respondent
And
Independent Children’s Lawyer
REASONS FOR DECISION
Index
Introduction
Procedural history
The s 11F Parenting and Children’s Issues Conference
The first Family Report of the Regulation 7 Family Consultant
Events following Consent Orders
The second Family Report of the Regulation 7 Family Consultant
The third Family Report of the Regulation 7 Family Consultant
Conduct of the final hearing
Standard of proof and finding of fact
Evidence
Chronology
Background
The parents’ relationships
Parenting arrangement: prior to separation
Parenting arrangement: separation to the commencement of proceedings in the Federal Circuit Court
Intervention orders
Breaches of the intervention order: September 2012 to October 2014 and the father’s violence to Ms O from February 2014 to July 2014
Parenting arrangement: mid-2014 to trial
Father commences relationship with Ms J
A change in the father’s propensity for violence post-February 2017
Credit and impression of Regulation 7 Family Consultant as a witness
Dr K
Mr L
Credit and impression of the parties and other witnesses
The mother
Mr M
Mr N
Ms O
Ms P
The father
Ms J (the father’s partner)
Mrs F
Mr D
Mr L
Relevant law – parenting issues
Determining the child’s best interests (Primary considerations)
Unacceptable risk
Treatment of the additional considerations
The nature of the child’s relationships
Long-term decision making, spend time and communicate with the child and the parties’ obligations to maintain the child
The likely effect of any changes in the children’s circumstances
Practical difficulty and expense associated with face to face time and/or communication with the other parent
The parents ability to meet the children’s needs and the responsibilities of parenthood demonstrated by each of the children’s parents
The children’s maturity, sex, background and other characteristics
Family Violence
Whether it would be preferable to make an order that will be least likely to lead to the institution of further proceedings in relation to the children
The child’s views
Any other fact or circumstance the Court thinks relevant
Parental responsibility
Conclusion
Costs
Introduction
These proceedings concern B (“the child”) who is eight years old having been born in 2010. Both parents seek orders that the mother have sole parental responsibility for the child and that the child live with the mother.[1]
[1] Final orders sought were tendered as exhibits “M10”, “F9” and “ICL2”.
The mother alleges the father perpetrated family violence towards her during the relationship and has been physically violent towards the child. She seeks that the father spends no time with the child and communicates with the child only by post.[2]
[2] The revised orders sought by the mother are exhibit “M10” to the proceedings dated 22 November 2017.
The father denied the allegations of family violence for six years and, at the commencement of trial, sought orders which coincided with the recommendations of the Regulation 7 Family Consultant,[3] Ms H (“the Regulation 7 Family Consultant”).[4] Those recommendations included progressing overnight unsupervised time to each alternate weekend from Friday to Monday, special days and half school holidays. This was predicated on the Regulation 7 Family Consultant’s assessment that she did not consider that the child was unsafe in the father’s care and that the risk of the child being exposed to violence in the future could be balanced by orders for the mother’s ongoing primary care and orders to minimising handovers.[5] Only when the mother’s case was closed and his case had commenced did the father start to admit the truth of the allegations which the mother had put squarely. On the basis of habitual family violence, he conceded it was not in his daughter’s best interest for the parents to have equal shared parental responsibility, that the mother should have sole parental responsibility and the child live with her.
[3] A Regulation 7 Family Consultant is a private practitioner who performs contract work for the court
[4] Section 62G(2) Family Report dated 26 December 2016 prepared by Ms H, Regulation 7 Family Consultant in which recommendations appear at [74] to [80].
[5] Ibid [66].
The father seeks orders directed at re-establishing his relationship with the child with whom he has not spent face to face time with since February 2017. He seeks time with the child be supervised by his partner, Ms J, and says that he will continue psychological counselling for perpetrators of family violence.[6]
[6] The precise and detailed suite of orders sought by the father are set out in Exhibit “F1”.
The main issue in this matter is the family violence consistently perpetrated by the father before and after the end of the parent’s relationship. The father was also violent in a subsequent relationship with Ms O. He claims his current relationship is unmarred by violence. The father’s behaviour has been manipulative and the violence, which has been physical violence as well as coercive controlling violence, insidious. It was often perpetrated in the presence of the child. Despite the father’s recent admissions regarding his conduct I am unconvinced that he does not pose an unacceptable risk to the child’s safety and wellbeing.
It is a case which focuses on the interrelationship between the primary considerations of doing what is necessary to ensure that the child is protected from harm and assessing whether having a meaningful relationship with both parents is going to benefit the child. It also highlights how the court process itself, even if conducted less adversarially, can be used to oppress and abuse a party to litigation.
Pursuant to an order made on 12 December 2014, Mr Seymour, solicitor employed by Legal Services Commission of South Australia, was appointed as the Independent Children’s Lawyer (“ICL”) for the child within the meaning of Division 10 of Part VII of the Family Law Act 1975 (Cth) (“the Act”). His role is to form an independent view, based on available evidence, of what is in the best interests of the child and then act in these proceedings in what he believes those best interests to be.[7] Mr Seymour is not a legal representative retained by the child and he is not bound by any instructions from her.[8]
[7] Family Law Act 1975 (Cth) s 68LA(2).
[8] Family Law Act 1975 (Cth) s 68LA(4).
At the conclusion of the final hearing, the ICL sought orders that the mother have sole parental responsibility and the child live with the mother and the father communicate with the child by post. He sought orders directed to the father’s (conceded) history of perpetrating family violence, including; the father continue therapeutic engagement with Mr L (psychologist) directed at men’s violence and anger management issues and that thereafter the parties’ engage in reunification therapy to assess the viability and appropriateness of reunification between the father and the child. Until the assessment for reunification therapy, the ICL sought orders that the father spend time with the child on four occasions per year (and two hours in duration) as supervised by a contact service.
This is the second final hearing. Historically, the parents agreed on final orders on 24 April 2013 (“consent orders”) in accordance with the recommendations of the Regulation 7 Family Consultant in the family report dated 22 February 2013. That was the first of three reports delivered by Ms H. The child was three years old. She was to spend nine out of 14 nights with the mother, five nights with the father and the parents had equal shared parental responsibility.
The father filed, and subsequently withdrew a contravention application on 23 April 2014.
The mother reinstituted parenting proceedings by filing an Initiating Application on 2 December 2014 seeking that she have sole parental responsibility and the child live with her, spend time with the father as agreed in writing or four hours each alternate weekend supervised and the father attend an anger management course. She sought these orders based on the child having sustained injuries, leaving her bruised, whilst with the father. The mother alleged that the father had hit the child causing bruising. I accept the mother’s concern was genuine but am not convinced that the father was physically violent to the child. The mother also alleged the father engaged in physical and emotional violence directed at her, and to a more limited degree, the child, during the relationship and after the parents separated in December 2011. It was the father’s case (when swearing his trial affidavit) that the parties were both verbally abusive towards the other during the relationship, that there were limited occasions when he pushed the mother “when she invaded my personal space” but that on no occasion did he harm the child or the mother nor was he physically violent or emotionally violent to the mother. He repeatedly and with specificity denied the incidents of family violence alleged by the mother. He stated in affidavit evidence “I deny that I have ever been violent towards the child, the mother, [Ms P] or [Ms O].”[9]
[9] The Father’s Affidavit sworn 20 January 2017 [192].
The final hearing commenced before me on 13 February 2017 estimated to take five days. At that time, the parties had equal shared parental responsibility, the child was living with the mother and spent limited time with the father (pursuant to orders of Dawe J made 16 February 2016) each alternate Saturday from 10 am until 4 pm supervised by a Children’s Contact Centre (“CCC”). On the fourth day of trial the father admitted that many of the mother’s allegations were correct. He said that he realised that his physical and emotional abuse of the mother was inappropriate and he would not engage in such conduct again. He maintained his denial of having harmed the child in any way. It was the father’s evidence that he was now a changed man.[10] The father was due to have the child spend time with him on that weekend but I suspended that time. The father has not spent time or communicated with the child since.
[10] Transcript in Confidence 16 February 2017 page 9 line 23.
On the ninth day of trial the evidence of the Regulation 7 Family Consultant was not complete and I adjourned the matter until a date to be fixed not sooner than three months hence. The parties were forewarned that the relisting would be delated. I relisted the matter on 14 September 2017 to complete the cross examination of the Regulation 7 Family Consultant and receive closing submissions. The lawyers for the father then indicated that the father would make an application to adduce further evidence from a psychiatrist by whom he had been assessed during the adjournment and a clinical psychologist from whom he was receiving therapy directed to long-standing issues of domestic violence. The application was opposed by the mother but granted by me.
The second tranche of the hearing commenced on 20 November 2017. We sat extended hours to get through evidence and final submissions. I express my appreciation to the court officers and court administration for accommodating the early and late sitting times. On 24 November 2017, I reserved my final decision which I now deliver.
I have decided that the optimal available protection for the child is not to see the father for another two years and then he can make an application for time and communication. In the meantime, I accept that the father will pursue the therapy he commenced last year directed at persons, like him, who have been perpetrators of serious family violence.
Procedural history
I do not propose to detail each and every occasion on which this matter came before the court, save to say that it has consumed a considerable amount of court time and resources and was financially and emotionally exhausting for the parties.
The mother commenced proceedings on 16 November 2012 by way of Initiating Application filed in the Federal Circuit Court. She sought orders for:-
a)Joint parental responsibility for the long-term care, welfare and development of the child;
b)Sole parental responsibility for the day to day care, welfare and development of the said child;
c)The child live with her and spend time with the father at such times as agreed between the parents or failing agreement for four hours each alternate weekend.
The father sought orders for:-
a)Equal shared parental responsibility for the child;
b)The child live with the mother and spend time with him from 8.00am Monday to 8.00am Friday each week.
The s 11F Parenting and Children’s Issues Conference
The parties underwent a Parenting and Children’s Issues Conference on 18 February 2013 with Ms Q who was a Family Consultant employed by the Adelaide Registry of the Court. The parties were seen together, and separately. The child, who was not yet two and a half, was not seen. Ms Q noted that allegations of family violence were matters for evidence but in view of the lack of collaborative relationship between parents, shared care of the child would not be supported. Ms Q’s summary of outcome of the child dispute conference was as follows:-
a)The relationship between the parties appears to be characterised by fear of coercion and manipulation on the part of the mother whilst the father appeared frustrated and at a loss to understand why the mother was unable to be more amicable.
b)Both parties indicated generally that the child is on track or ahead in her developmental milestones. Separately, the mother reported that the child is unsettled after weekend contact. She reported that she is unsettled and withdrawn in the following week. The mother proposed that weekend contact be reduced so that the child has Sunday afternoon to become settled again and accustomed to that environment again before the start of the week. This change was declined by the father who attributed blame to the mother for not adequately settling her. There was no negotiability.
c)The father could not conceive that the child’s age may present some challenges for her in moving between two homes and routines and he strongly conveyed the child is problem free with him and never asks for her mother.
d)The father vehemently argued that he previously had shared care of the child for two weeks-about, that there has been no reason to change that, and that from his perspective the child is very capable now of moving between her parents week about.
e)The Family Consultant was unable to credibly convey information to the father about the developmental capacity of young children to regularly move between homes and to manage prolonged overnight time away from a primary carer and the need for a good collaborative parental relationship. This appeared to be interpreted as the Family Consultant being biased toward maternal care. The father strongly conveyed his frustration and disappointment to the writer about the conference.
f)The mother considered proposing the father spend time with the child during the week on the assumption he was not working. This proposal was for day time contact only.
g)The father reported that he now works full-time so this was not a viable option. The father explained that now he is working, the child is cared for by his mother on Thursday’s.
h)The mother was not negotiable about making any increase to the present arrangement.
i)The mother sought reassurance from the father that the child has her own room during time spending. The father gave this reassurance and said that he has now moved to reside with his partner at her parents’ house. The father’s most recent time spending has been at the new location. The mother did not disagree with time spending in this new environment. The Family Consultant suggested to the father that he check that Court orders are consistent with the new location.
Ms Q’s assessment was prescient. This was her only involvement in the matter. She had since left the employment of the court and was not a witness in the proceedings.
The first Family Report of the Regulation 7 Family Consultant
On 5 April 2013 the parents and the child were assessed by Ms H. The first family report was published by Ms H on 7 April 2013. She observed:-
[48]At the conclusion of the Family Assessment it was clear that both parties loved and cared for [the child]. Of concern however were the allegations that [the child] had been exposed to violence and threats of violence from a young age. Children need parents to act as role models who demonstrate effective problem solving skills and respectful communication. Exposure to conflict can cause children both short and long term emotional damage and weaken their sense of safety and security. It was clear from the information at hand that both parties had lost a degree of trust in each other and that the ongoing litigation process had been a difficult and emotionally fraught period of time for both parties. It did appear likely that [the father] may have minimised his level of intimidation towards [the mother] in the past and his role in inflicting violence within the relationship and beyond. Whilst [the mother] felt the need to impose an Intervention Order against [the father] it was the view of the Family Consultant that both parties were motivated to respect the other and refrain from future acts of violence. They both also appeared to be mutually understanding of the benefit to [the child] of seeing her parents come together for their sake and putting the children’s needs before their own.
[49]Given each of the parties presented at the Assessment as child-focussed, educated and emotionally attuned parents there was a strong belief that [the child’s] risk of exposure to family violence had been reduced and that the parties ability to communicate effectively on children’s matters would continue to improve in time. It would be recommended that both parties work on re-building their trust of one another and work towards successful, respectful and open face to face communication in the future. It was to [the mother’s] credit that she had attended the Kids are First Parenting Program and it was positive that [the father] indicated that he was soon to attend, as was his partner, [Ms O]. He also indicated his desire to complete an age appropriate parenting program as recommended by his lawyer and this would be recommended by the Family Consultant.
[50]Despite some understandable anxiety about [the child’s] parenting needs and how to meet these needs effectively across the two homes [the mother] presented as being a relatively confident, a highly capable and caring mother. Whilst she supported the view that [the child] enjoyed spending time with [the father] and she did not appear to denigrate him to [the child] in any way she did request that the Court only support [the father] to spend one night a fortnight with [the child] due to her concerns about possible direct and indirect exposure to violence, her fear that he would manipulate [the child], and her concerns that [the child’s] current amount of time with her father caused her to be unsettled. Whilst [the mother’s] concerns about [the child’s] needs for stability were appreciated it was not the view of the Family Consultant that it was in [the child’s] best interests to reduce her time spent with the father.
[51][The child] [sic] appeared to have a secure and primary attachment to her mother and to be a well-adjusted child who is thriving in her care environments, despite some struggles to settle after handovers, as commonly note with young children. [The child] also appeared to delight in spending time with her father and to have formed a secondary secure base in his care. Observations of [the child’s] time with her father demonstrated that [the child] felt safe and secure in his care, there was a strong emotional connection between the two and [the child] delighted in sharing in time with her father. Notwithstanding [the mother’s] concerns about [the father’s] propensity to violence, and whilst this remains a matter for evidence before the Court, [the father] did impose as a caring father who was emotionally attuned, empathic and sensitive to [the child’s] needs, and capable of meeting those needs.
[52]While Ms O did not attend the Assessment with [the father] and was not part of the Assessment process [the father] had claimed that they shared a healthy and happy relationship and he strongly disputed the claims that [the child] was at risk of exposure to violence in their care. It was hopeful that these claims were accurate and that both parties were now in healthy and happy relationships with their current partners and that both parents understood the need to ensure that [the child’s] future was free from exposure to all forms of violence, harm and threats of harm. Similarly with the issue of drug use, whilst this remained a matter of evidence before the Court it was hopeful that [the father] was honest in his claims that he was no longer consuming any illegal drugs and that he was able to demonstrate this with proof of regular and random drug testing by his current employer. Given the concerns raised about drug use it would be recommended that long term Orders be made refraining the father from illegal drug use 24 hours prior to or whilst caring for [the child].
I accept that the Regulation 7 Family Consultant approached her task in good faith. I accept her evidence that exposure to family violence will cause children short, medium and long term emotional harm and weaken their sense of safety and security. It will also inhibit them from forming appropriate relationships with peers and a life partner. The Regulation 7 Family Consultant opined that “it did appear likely that the father may have minimised his level of intimidation towards the mother in the past and his role in inflicting violence within the relationship and beyond”. It is not clear to me, however, on what basis the Regulation 7 Family Consultant accepted that the father was “motivated to…refrain from future acts of violence”. It is also unclear how the Regulation 7 Family Consultant assessed the father as being an “emotionally attached parent” or how the parents being “educated” substantiates the Regulation 7 Family Consultant’s belief that the child’s exposure to family violence was lessened. It appears that the Regulation 7 Family Consultant accepted that the father would refrain from serious and entrenched family violence because she expressed the view that he should. It is a naïve approach. It was an approach that was dangerous to the mother and, through her, to the child.
At the conclusion of the first family report dated 22 February 2013, Ms H’ recommendations were:-
[56]Once school age the parties would be recommended to agree to engage in mediation to discuss school and parenting issues should they not be able to reach agreement without the support of professionals. It would be ideal if the parties could work towards a shared care parenting arrangement once [the child] was school age, ideally a 3 day / 4 day split until old enough to manage week about. Effective immediately it would be recommended that the parties share all special occasions equally.
The mother’s evidence was that, facing such a strong recommendation by the Regulation 7 Family Consultant, she considered she had little alternative but to enter into final orders reflecting the recommendations, by consent, as she did three weeks later on 24 April 2013. I accept the mother’s evidence in that regard. The first round of the proceedings were finalised accordingly without Ms H being cross examined.
The consent orders made on 24 April 2013 provided:-
a)The parents have equal shared parental responsibility for the child;
b)The child live with the father for five nights per fortnight;
c)The child live with the mother at all other times;
d)The child spend equal time with the parents on special occasions – including the parents’ birthday, the child’s birthday and Christmas;
e)The non-resident parent be permitted to telephone the child for a maximum of three occasions per week between 6.30 pm and 7 pm;
f)Handovers that do not take place at the child’s school or day care centre take place at R Park or otherwise as agreed.
Events following Consent Orders
The parents’ relationship deteriorated over 2014; at the time the father was subject to an intervention order listing the mother as the protected person. The parenting arrangements under the Order of the 24 April 2013 broke down in approximately July 2014. The father continuously breached the intervention order by harassing the mother by telephone and threatening her at handovers. The father filed an Application for Contravention of Child Orders on 23 September 2014. The application was subsequently withdrawn prior to the hearing date of 12 December 2014.
Orders were made on 4 December 2012, 18 December 2012, 10 November 2014 in the Federal Circuit Court by Judge Cole directed at the father’s time with the child. Ultimately on 10 November 2014, Judge Cole made orders for the father to spend time with the child from 11 am to 2 pm each Saturday with time to be supervised by the paternal aunt.
The mother reissued proceedings on 2 December 2014. She alleged that the child had been hit by the father and consequentially sustained bruising and subsequently the father’s time spent was revised. He spent supervised time with the child at a CCC from 12 December 2014 up until 14 July 2014 when Judge Cole ordered that from 18 July 2014 the child spent time with the father each alternate Saturday supervised by Ms F (the paternal great grandmother) or Mr E (the paternal step great grandfather). The mother appealed this decision on 29 July 2015 and subsequently abandoned her appeal on 14 September 2015. On 30 July 2015 Judge Henderson suspended the 14 July 2014 order and ordered the father spend time with the child at a CCC.
The proceedings were transferred to the Family Court of Australia on 17 September 2015 by Judge Cole. His Honour also made orders for the father to spend supervised time with the child for two hours each alternate weekend with time to occur at a CCC.
The second Family Report of the Regulation 7 Family Consultant
The second family report by Ms H was ordered by Judge Cole on 14 July 2015 as a consequence of new proceedings being instituted, namely the father’s contravention application filed 23 September 2014 and the mother’s application for variation filed 2 December 2014. Interviews and observations of the parents and the child occurred on 19 October 2015. At the time of the second family report the child was 5 years of age and resided with the mother. The mother’s partner, Mr M, and new born baby were in attendance for the interview with the mother. The father attended on his own.
The father was in a relationship with Ms J and had been for 18 months. He described the relationship as “amazing…how it should be”.
The mother held the position that she was unwilling to communicate with the father in any way in the future. She stated that even when handovers occurred at a Police Station, the father continued to be intimidating and violent at handover. The father denied ever being abusive, intimidating or threatening at handovers. He stated he would never act in such a way in front of the child.
Both parties reported the use of the communication book as unsuccessful. The mother refused to communicate with the father as a result of feeling intimidated and untrusting of him whilst the father proffered that “the change in me is significant” and that he had not contacted the mother in one and a half to two years, and that no new incidents of concern had been raised in that time. He said that he wanted the parents to communicate more effectively such as via text message and telephone calls.
On the subject of violence the father denied the child was at risk in his care and denied having a problem with anger or a propensity for violence. He admitted to being in a violent relationship with his previous partner, Ms O, but claimed that Ms O was the perpetrator of violence; scratching and bruising him. He did not mention that he had punched, beaten or suffocated Ms O or broken into her house. It does not appear that the Regulation 7 Family Consultant pressed the father on his description of the violent relationship and about accepting the father’s assertions that Ms O was the aggressor. This was in spite of Ms O’s affidavit sworn 25 November 2012 being on the Court file and it containing details of the father’s violence toward her.
The mother’s position was that the father spend no time with the child. In regards to his current time she said the father could “perform” whilst under professional supervision but that she had no confidence that his parenting would be good enough if and when the supervision was suspended.
Under observation the Regulation 7 Family Consultant recorded all parties “were a delight to view, with no concerns raised”. In her evaluation, the Regulation 7 Family Consultant made the following observations:-
[64]…[The mother] appeared fixed in her views that [the father] was untrustworthy and that due to his history of intimidation and aggression she was unwilling to communicate with him in any way in the future. Given it was undisputed that [the father] had abused [the mother] at times in the past, it was not surprising that she lacked trust in him, and was potentially anxious around him. This being said, and without minimising [the mother’s] past experiences of abuse, it was considered unfortunate for [the child] that [the mother] was not more open to finding a way to communicate on children’s issues that balanced her need to feel safe and [the child’s] needs to be free from exposure to conflict, with the equal need for the parties to share communication effectively between them on matters impacting [the child].
[65]The allegations before the Court regarding [the father’s] propensity for violence and his ability to act in a child-focused manner remained a matter for evidence. By his own admission he had breached the Intervention Order by way of telephone contact with [the mother], and also by communicating with her at a nightclub. He also admitted to acting immaturely and in anger at times when frustrated with parenting arrangements and matters in dispute between the parties. He categorically denied ever physically harming [the child] or physically disciplining her in recent years, however, again, this remained a matter for evidence before the Court. This being said, it did appear to the Family Consultant that [the father] had developed a greater level of insight into the management of his emotions since meeting him in 2013, and that he had developed a greater level of emotional maturity and self-reflection.
[66] Without minimising the issues of concern before the Court with respect to violence and emotion management, it did appear that in the last 12 months that [the father] had not breached his Good Behaviour Bond or the Intervention Order, and nor had any new incidents of concern been raised before the Court with respect to violence had he acted inappropriately, or been inconsistent in his time spent time with [the child]. Furthermore, [the father] claimed to have stable employment, to be drug free, and to have a stable and secure relationship with his current partner, which was free from violence. If this was to be accepted by the Court, as claimed by [the father], then the level of perceived risk to [the child] in her father’s care would not be considered unacceptable, as claimed by [the mother]. Rather, it would be considered that due to the history of concerns that some level of concern would remain, but that this could be effectively balanced with the implementation of a number of protective Orders put in place, both short and long-term. This would minimise the risk whilst allowing [the child] to maintain a meaningful attachment to her father long-term.
[67]In the initial Family Assessment, it was concluded that [the child] “appeared to have a secure and primary attachment to her mother…and…also appeared to delight in spending time with her father and to have formed a secondary secure base in his care”. It went on to state, “observations of [the child’s] time with her father demonstrated that [the child] felt safe and secure in his care, there was a strong emotional connection between the two, and [the child] delighted in sharing in time with her father. Notwithstanding [the mother’s] concerns about [the father’s] propensity to violence, and whilst this remains a matter for evidence before the Court [the father] did impose as a caring father who was emotionally attuned, empathic and sensitive to [the child’s] needs, and capable of meeting these needs”. This view of [the father] and the attachment between [the father] and [the child] remained accurate at the conclusion of this Assessment.
[68]Whilst the allegations of violence, drug use and general parenting ability remain as issues for evidence before the Court, it was considered to be in [the child’s] best interests for the Court to support [the child] to continue to spend time with her father, and for this to eventually shift from the CCC back to [the father’s] home, with the amount of time to gradually build to a parenting arrangement that was similar to the amount of time [the father] was Ordered to spend with [the child] in the 2013 Final Orders. Given the matters of concern before the Court, including the parties’ poor communication and high conflict, coupled with [the child’s] young age and her need for structure and stability, especially as she transitions into Reception in 2016, it was not considered to be in her best interests for a shared care parenting arrangement to be supported.
The ultimate recommendations of the Regulation 7 Family Consultant in the report dated 20 October 2015 were:-
a)The parents share parental responsibility;
b)The child spend time with the father each alternate Saturday from 10 am until 3 pm with handovers to occur at a CCC;
c)That after two occasions of time with the father pursuant to (b) the father spend gradually increasing time with the child, increasing to a long-term spend time arrangement from after school Friday until the commencement of school Monday;
d)The mother keep the father updated of the child’s school process;
e)The parents be restrained from denigrating one another or allowing any other person to do so;
f)The parents be restrained from physically disciplining the child or allowing anyone else to do so.
Where a significant proportion of the father’s intimidation of the mother occurred in spite of intervention orders and at handovers, I do not understand why the Regulation 7 Family Consultant referred to the mother’s refusal to improve communication as being “unfortunate […] that [the mother] was not open to finding a way to communicate on children’s issues.”[11] The Regulation 7 Family Consultant’s conclusions that the father “had developed a greater level of insight into the management of his emotions”[12] is unsubstantiated by reference to anything in the Regulation 7 Family Consultant’s report. Likewise the “protective Orders”[13] upon which the Regulation 7 Family Consultant relied to “effectively balance”[14] concerns about the father’s behaviour were not particularised.
[11] The second family report, Regulation 7 Family Consultant Ms H, 20 October 2015, [64].
[12] Ibid [65].
[13] Ibid [66].
[14] Ibid.
The second family report is written from a perspective of giving the father the benefit of every doubt but being critical of the mother. At the very least, the Regulation 7 Family Consultant seems to have overvalued the benefits to the child of having a meaningful relationship with the father at the expense of making an assessment in real terms of what was necessary to protect the child from harm, in particular, psychological and emotional harm. In the second report the Regulation 7 Family Consultant stated she was not “minimising [the mother’s] past experience of abuse.” However, with the benefit of hindsight and the father’s late admissions, it would appear the Regulation 7 Family Consultant was in fact minimising the mother’s concerns and experiences of violence.
Following the Regulation 7 Family Consultant’s second report extensive interim orders were made by Justice Dawe on 16 February 2016 which provided that:-
a)The father spend two hours with the child each alternate weekend at a CCC for at least four further sessions. Thereafter, the father spend time with the child for six occasions from 10 am to 2 pm and thereafter from 10 am until 4 pm;
b)All times that are not spent at a CCC be spent in the primary presence of one of the nominated supervisors; the paternal step grandfather, the paternal step great-grandfather or the paternal great grandmother;
c)Both parents be restrained from discussing the proceedings in the presence of the child or denigrating the other party in the presence of the child.
d)Both parents are restrained from using physical discipline on the children.
On 1 September 2016 Justice Austin made trial directions for the proceedings to be listed to commence on 13 February 2017 before me.
The third Family Report of the Regulation 7 Family Consultant
The third family report was ordered by Justice Austin on 1 September 2016 in preparation for final hearing. The report interviews and observations were conducted with the parents, the mother’s then partner Mr M, the father’s partner, Ms J, and the child on 21 December 2016.
At the time of interview the child was six years of age. She lived with the mother and was spending time with the father each alternate Saturday at a CCC from 10 am until 4 pm. The intervention order had remained in place. The parties continued to communicate through solicitors although the mother alleged the father continued to breach the intervention order. The father’s partner had recently given birth to the father’s second child.
At the time of interview, the mother’s preference remained that the parents have no communication at all although she conceded that if the child spent time with the father then she would communicate with the father through the CCC but not directly in any form. The father continued to express hope the parents could communicate more directly and suggested they engage a therapist to break down the communication barriers.
The parents’ positions in respect to allegations of violence were unaltered. The mother acknowledged that no new instances of violence had occurred but proffered that the father was just trying to impress the court and his behaviour would regress at the conclusion of the proceedings. The father and Ms J stated “that there had been no violence in their relationship and that after two and a half years it remained stable and secure”. The father added that it deeply saddened him that the mother continued to portray and believe him to be a violent person.
In evaluation, the Regulation 7 Family Consultant’s position was:-
[66]The Family Consultant’s position remained unchanged on matters before the Court involving allegations of drug use, violence and general emotional sensitivity. Whilst [the father] was charged with a breach of the Intervention Order in recent time, and all breaches of Orders must be taken seriously, this did not shift the view of the Consultant to the point of considering [the child] to be unsafe in the father’s care. A level of caution would remain as to the risk of the child being exposed to violence in the future, given the past, however, it was the opinion of the Consultant that this risk should and could be balanced by supporting the mother’s ongoing primary care of the child and other Orders in place such as minimising handovers between the parties and supporting them to remain at the CCC until such time that the mother felt safe to do otherwise.
…
[69]Whilst [the mother’s] concerns about [the child’s] safety were understandable given her own life experiences, some concern was raised that she struggled to value [the father’s] role in [the child’s] life such that her preferred outcome be that [the child] cease all contact with him in the future. It was the opinion of the Consultant that if this was supported [the child] would risk feeling a sense of grief and loss as well as a sense of rejection and lack self-worth both in the short and long term, and the management of this risk would be essential.
Notably the Regulation 7 Family Consultant considered any risk of the father perpetrating violence in the future towards the child could be balanced by the mother’s ongoing primary care and orders which minimise the parents’ contact with each other. That is a formulation of thought with which I have difficulty. The Regulation 7 Family Consultant uses language which indicates knowledge and appreciation of family violence but the conclusion was inconsistent. My impression is that the assessment and consequent report was somewhat of a tick the box exercise for the Regulation 7 Family Consultant. Her consistent view was that the child’s relationship with the father should be supported. The Regulation 7 Family Consultant placed no weight on the mother’s allegations, other than to indicate that the mother’s attitude was unfortunate and that she should move on from her own experiences and allow the child an unfettered relationship with the father. In my assessment, that does not reflect a sound appreciation of family violence.
The Regulation 7 Family Consultant made the following recommendations in her report dated 26 December 2016:-[15]
e)The parents share parental responsibility;
f)The parents communicate by text messages and emails;
g)All handovers occur at the child’s school or at a CCC;
h)The child live with the mother and spend gradually increasing time with the father, increasing to after school Friday until the commencement of school Monday each alternate weekend, plus one half of school holidays and special occasions;
i)The father be permitted to participate in the child’s schooling and future sporting activities;
j)The parents facilitate the child obtaining a passport;
k)The parents reach specific orders for the child’s overseas travel.
[15] The third family report, Regulation 7 Family Consultant Ms H, 26 December 2016, [74] – [82].
Conduct of the final hearing
The parenting applications are proceedings to which the Less Adversarial Trial provisions of Division 12A of Part VII of the Family Law Act1975 (Cth) (“the Act”) apply.
The principles for conducting child related proceedings, which I observed, are as follows:-[16]
a)To consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
b)To actively direct, control and manage the conduct of the proceedings.
c)To conduct proceedings in a way that will safeguard the child concerned against family violence, child abuse and child neglect and the parties to the proceedings against family violence.
d)To ensure that the proceedings are, as far as possible, conducted in a way that will promote cooperative and child-focused parenting by the parties.
e)To ensure that the proceedings are conducted without undue delay and with as little formality, and legal technicality and form, as possible.
[16] Family Law Act 1975 (Cth) s 69ZN.
The final hearing was heard in two tranches; 13, to 23 February 2017 (“the first tranche”). On 24 August 2017 and then 20 to 24 November 2017 (“the second tranche”).
On the first day of the final hearing, I made the observation that a psychiatric assessment of both parents may have assisted the court. A psychiatric assessment would have been directed to expanding the breadth of knowledge and understanding of the parents and their individual characteristics. Even though neither parent may have fallen within the clinically relevant range, their unique and what appeared to be intransigent views of the world might have reflected more clearly in the process as would the extent to which they either contribute to, or were reacting to, the problems which each perceived in the other. No party, including the ICL, had previously made an application for a psychiatric assessment. I did not press one upon them because that would have required an adjournment of the final hearing for probably six or more months, when it was reasonably expected to conclude within the first week. I was also not satisfied that the practitioners accessible to the parties had the necessary skillset to provide evidence about the psychopathology of the parents as well as to diagnose any psychiatric condition where the psychopathology is likely to be the most illuminating information. That skillset is frequently found in practitioners with extensive experience in child and adolescent mental health services where they are required to treat children in a family context and families generally. No party indicated that such a practitioner would be available within a reasonable time frame.
During the long adjournment between the first and the second tranche the father engaged in a psychiatric assessment by Dr K and psychological counselling with Mr L.
The first tranche of the proceedings consisted of examination and cross-examination of the mother, examination and cross-examination of Ms P, cross-examination of the father and the commencement of cross-examination of the Regulation 7 Family Consultant.
On 24 October 2017 I made orders which provided leave for both parents to re-open their case to adduce further evidence. The matter was otherwise adjourned part-heard to 20 November 2017 and estimated to take four to five days.
The second tranche of the proceedings consisted of the conclusion of the cross examination of the Regulation 7 Family Consultant, cross examination of father, cross examination of the psychologist, evidence and cross examination of the mother and final addresses (in that order).
The proceedings have been a hugely expensive exercise for the mother who has been supported financially and emotionally by the maternal grandfather. The father was in receipt of legal assistance for the proceedings but paid out of his own pocket some expenses which the Legal Aid Commission of South Australia would not fund as well as some expenses incurred after his fees exceeded the cap of his grant of legal assistance.
The maternal grandmother passed away during the trial on 21 February 2017. This occurred after a long illness. It was the mother’s position that the trial should not be interrupted by her mother’s passing. Counsel for the mother stated in her closing submissions that had the father not presented the case in the manner that he did, instead of sitting in the courtroom on the days immediately before her mother’s death and immediately following, the mother would have been with the maternal grandmother at a very significant time. I accept that the trial was a particularly sad time for the mother and her family but it was the mother’s choice to continue, she did not seek an adjournment or any interruption. The mother was accompanied by her father for most of the trial.
Over the course of the final hearing the mother was represented by Ms Taanya Lewis of counsel. Ms Lewis’ cross examination of the father was thorough and incisive. The father frequently complained about Ms Lewis’ persistent questioning but it was merely fair, well thought out and effective cross examination.
The father was initially represented by Ms Vanessa Lindsay of counsel. Shortly prior to the resumption of the trial in November, Ms Lindsay purported to withdraw as counsel for the father on the basis that her instructing solicitor, Mr Gallasch, had acted without appropriate consultation with her. I regard Ms Lindsay’s failure to seek leave to withdraw in a part heard matter to be discourteous to the Court but I did not call her in to explain. She was replaced by Ms Iris Green of counsel. I have been conscious not to let Ms Lindsay’s behaviour reflect poorly on the father over and above being satisfied that he gave instructions to Ms Lindsay to run the case as she did and that the late timing of the father’s admissions of family violence was a strategic decision taken by him whilst he was represented by Ms Lindsay.
Standard of proof and finding of fact
Section 140 of the Evidence Act 1995 (Cth) provides the relevant test for the Court’s assessment of evidence in this matter. It is on a balance of probabilities. Each party has the onus of proving that for which he/she contend.
In these reasons a statement of fact is a finding of fact.
Evidence
At the trial the mother relied upon the following evidence:-
a)Her affidavit of evidence in chief affirmed 22 December 2016 and her affidavits affirmed 26 September 2017 and 14 November 2017;
b)Affidavit of Ms O (father’s ex-partner) sworn 25 November 2014;
c)Affidavit of Mr M (mother’s ex-partner) affirmed 6 January 2017;
d)Affidavit of Mr N (maternal grandfather) affirmed 6 January 2017;
The general duties[17] and the powers relating to evidence[18] expand the Court’s role in the regulation of child related proceedings. In this case I directed that evidence by one of the mother’s witnesses, Ms O, be interposed. I also imposed a time limit on the cross examination of the mother by counsel for the father. In each above instance, the father’s counsel received warning well in advance and, whilst objecting to the interposition of the evidence of Ms O, counsel for the father did not articulate any prejudice flowing to her client therefrom.
[17] Family Law Act 1975 (Cth) s 69ZQ.
[18] Family Law Act 1975 (Cth) s 69ZX.
I permitted reliance by the mother on the evidence of Ms P affirmed 13 February 2017. This was contrary to an earlier trial direction of Justice Austin made on 1 September 2016 which excluded the affidavit. As it turned out Ms P did not assist the mother’s case but was an informative witness for the court.
All of the mother’s witnesses were required for cross examination and my impression of them appears below.
At the trial the father relied upon the following evidence:-
a)The father’s affidavit of evidence in chief affirmed 20 January 2017 and his affidavits affirmed 30 August 2017 and 20 November 2017;
b)Affidavit of Ms F (paternal great-grandmother) affirmed 20 January 2017.
c)Affidavit of Mr D (partner of the paternal grandmother) affirmed 20 January 2017.
d)Affidavit of Ms J (the father’s partner) affirmed 20 January 2017.
e)Affidavit of Dr K (psychiatrist) affirmed 31 October 2017 to which was annexed his report dated 24 March 2017.
f)Affidavit of Mr L (father’s psychologist) affirmed 31 October 2017 to which was annexed his report of 29 August 2017. Mr L’s notes of the first five sessions were tendered by the father.[19]
[19] Mr L’ notes were exhibit “F1” in the proceedings.
Save for Dr K, all of the father’s witnesses were required for cross-examination.
The father also relied on the S Group Children’s Contact Service Reports dated 14 September 2015.[20] That report describes supervised time on 17 May, 20 June, 8 and 22 August and 5 September 2015. An undated report from S Group Children’s Contact Service Reports describing supervised time on 21 February, 7 and 21 March, 4 and 18 April and 2 and 17 May 2015 is annexure “JD1” to the father’s trial affidavit. The authors of the Contact Service Reports were not required for cross examination. I treat their evidence as unchallenged.
[20] Annexed to the affidavit of the ICL sworn 15 September 2015.
In the first week of the trial Ms Lindsay sought a certificate for the father under s 128 of the Evidence Act 1995 (Cth). The application required a number of iterations before I could rule on it. Ultimately I directed that a certificate could issue subject to Ms Lindsay identifying by reference to transcript what evidence of the father was to be subject to the certificate. She said that would be done. I ordered transcript of the father’s evidence which was to hand and distributed well before the end of the first two weeks of trial. The marked up transcript has not been produced to date. Consequently, a s 128 certificate has not issued. Should the father need a s 128 certificate in the future he can re-activate the Order.
Otherwise, there were no significant objections taken to the admissibility or fairness of the evidence relied upon.
The Parenting and Children’s Issues Assessment by Ms Q was relied upon for historical context.
The materials and evidence facilitated by the ICL were the Family Reports of the Regulation 7 Family Consultant, being:-
a)Family Report dated 26 December 2016 prepared pursuant to the Order of Austin J made 1 September 2015 and for which interviews were held on 22 December 2016.
b)Family Report dated 20 October 2015 prepared pursuant to the Order of Judge Cole made 14 July 2015 and for which interviews were held on 19 June 2015.
c)Family Report dated 7 April 2013 prepared pursuant to the Order of Federal Magistrate Cole (as he then was) made 22 February 2013 and for which interviews were held on 5 April 2013.
The Regulation 7 Family Consultant was cross examined on 22 and 23 February 2017 and on 20 November 2017. I will discuss her evidence later in these reasons.
By consent, I also have regard to the previous affidavits of the parties as part of the historical context of the matter, in particular, the father’s avoidance or denial of the mother’s specific allegations. Those documents are the:-
a)Father’s affidavits affirmed 14 December 2012[21], 20 May 2015[22] and 1 December 2015[23];
b)Mother’s affidavits affirmed 15 November 2012[24], 25 March 2013[25], 28 November 2014[26], 19 May 2015[27] and 1 July 2015[28].
[21] Folio [5].
[22] Folio [25].
[23] Folio [57].
[24] Folio [2].
[25] Folio [9].
[26] Folio [17].
[27] Folio [27].
[28] Folio [34].
The presumption that it is in the best interests of the children that the parents have equal shared parental responsibility does not apply or is rebutted in the following circumstances:-
a)If the court reasonably believes that a parent of a child, or a person who lives with a parent of a child, has engaged in family violence[190] or abuse of the child or another child who is a member of the parent’s family;[191]
b)If, at an interim hearing, the court considers it is inappropriate for the presumption to apply[192] or;
c)Where evidence is adduced, upon which the court is satisfied that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[193]
[190] Family Law Act 1975 (Cth) s 61DA(2)(b).
[191] Family Law Act 1975 (Cth) s 61DA(2)(a).
[192] Family Law Act 1975 (Cth) s 61DA(3).
[193] Family Law Act 1975 (Cth) s 61DA(4).
In this case I am satisfied on the evidence and on the admission of the father that he has engaged in family violence perpetrated towards the mother and his previous partner Ms O with whom the child shared a close relationship.
Taking all of the above considerations into account I am satisfied that sole parental responsibility should be awarded to the mother (as conceded by the father during the trial).
Having made the decision to award sole parental responsibility to the mother, it is not necessary for me to consider the question of equal time or substantial and significant time with both parents.
Conclusion
It is a serious matter to terminate or interrupt a child’s relationship with a parent. In this case it is the only measure which I am satisfied will keep the child safe from the psychological harm which the father poses to her. In all of the circumstances, I am satisfied that the orders set out at the commencement of these reasons implement an arrangement which is in the child’s best interests.
Costs
Any party who wishes to make an application for costs may do so in accordance with the orders set out at the commencement of the decision.
I certify that the preceding four hundred and forty-four (444) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett.
Legal Associate:
Date: 12 October 2018
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