Gingham and Gingham
[2013] FamCA 727
•17 September 2013
FAMILY COURT OF AUSTRALIA
| GINGHAM & GINGHAM | [2013] FamCA 727 |
FAMILY LAW – PRACTICE AND PROCEDURE – Rice & Asplund – Whether there has been a significant change in circumstances – Summary disposal – Whether the application is frivolous or vexatious – Whether the application has a reasonable likelihood of success – Where there is no significant change in circumstances which would warrant further litigation of the parenting matter.
Evidence Act 1995 (Cth).
Family Law Act 1975 (Cth) s69ZN, s69ZQ(1), s69ZR, s69ZT(1).
Family Law Rules 2004 (Cth) r10.12(c), r10.12(d).
| Bennett and Bennett (1991) FLC 92-191. |
Caracini & Paglietta [2009] FamCAFC 188.
CDJ v VAJ (1998) 197 CLR 172.
DL & W [2012] FamCAFC 5.
Freeman and Freeman (1987) FLC 91-857.
G & G [2000] FamCA 12.
Goode and Goode (2006) FLC 93-286.
King and Finneran (2001) FLC 93-079.
Marsden v Winch [2009] FamCAFC 152.
McEnearney and McEnearney (1980) FLC 90-866.
Miller & Harrington (2008) FLC 93-383.
Rice v Asplund (1979) FLC 90-725.
| SPS and PLS (2008) FLC 93-363. | |
| APPLICANT: | Ms Gingham |
| RESPONDENT: | Mr Gingham |
| FILE NUMBER: | BRC | 2720 | of | 2010 |
| DATE DELIVERED: | 17 September 2013 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Hogan J |
| HEARING DATE: | 17 June 2013 |
REPRESENTATION
| APPLICANT: | In person |
| COUNSEL FOR THE APPLICANT: |
| SOLICITOR FOR THE APPLICANT: |
| COUNSEL FOR THE RESPONDENT: | Mr Hamwood of Counsel |
| SOLICITOR FOR THE RESPONDENT: | Crowley Greenhalgh |
Orders
The Application in a Case filed on 27 September 2012 is dismissed.
In the event that the Respondent seeks an order that the Applicant pay his costs of and incidental to the Application in a Case filed on 27 September 2012:
(a)the Respondent file and serve brief written submissions in support of such application for costs within 14 days of the date hereof;
(b)the Applicant file and serve any brief written submissions in answer to any submission filed and served by the Respondent within a further 14 days thereafter;
(c)the Respondent file and serve any brief further written submissions strictly in reply to the submission served by the Applicant within seven (7) days of its service,
and such application for costs shall be determined in Chambers.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gingham & Gingham has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 2720 of 2010
| Ms Gingham |
Applicant
And
| Mr Gingham |
Respondent
REASONS FOR JUDGMENT
On 27, 28 & 29 October 2010, 15, 16 & 17 February 2011, 12 April 2011 and 14 April 2011, the parents of X, born in 1997, (“the child”) conducted a trial (“the trial”) before Murphy J. At that time, the mother had not seen the child for no less than about three (3) years.
On 13 May 2011, his Honour made the current operative Order (“the May 2011 Order”) and delivered extensive Reasons for Judgment (“the May 2011 Reasons”).
The May 2011 Order provided, inter alia, that:
a)the father have sole responsibility for making all such decisions as might be necessary in respect of the child’s schooling including, but not limited to, the school which the child attends;[1]
b)the child live with the father;[2]
c)the child spend no face to face time with the mother save in accordance with the terms of the Order and save otherwise as he might request; [3]
d)in the event the child expresses a wish to spend time with the mother, the father shall do all things as are reasonably necessary so as to effect that time occurring in accordance with the child’s wishes;[4]
e)the parents, commencing on 1 August 2012, nominate in writing and seek to agree upon an appropriately qualified child and adolescent psychiatrist to be consulted by the child as and from 1 December 2012 with a view to the child discussing all such issues as he might choose and with a view to considering, with the assistance of that psychiatrist, the re-establishment of face-to-face time with the mother.[5]
f)the child is at liberty to telephone the mother twice per week (on Tuesday and Thursday or otherwise as agreed) and otherwise as he might choose, with such telephone calls to be initiated by the child, and the father shall do all such things as might be necessary so as to encourage and facilitate such calls; [6]
g)the mother be at liberty to communicate with the child by letter or card (sent via prepaid post) at all such times as she might choose and to forward to the child (via prepaid post) any birthday or Christmas gifts;[7]
h)save as otherwise agreed between the parties in writing, the mother shall not, except in accordance with the provisions of the Order, initiate communication with, or seek to initiate communication with, the child;[8]
i)save as otherwise agreed between the parties in writing and except for the mother providing in writing her contact details to the child’s school, the mother be restrained, and an injunction issue restraining the mother, from contacting any school which the child shall attend, and from causing or permitting others to contact, or trying to contact, the child and any school he attends;[9]
j)neither the mother nor father file any application in respect of the child or the Order without first obtaining leave of the Court.[10]
[1] Paragraph 2, Order 13 May 2011.
[2] Paragraph 5, Order 13 May 2011.
[3] Paragraph 6, Order 13 May 2011.
[4] Paragraph 7, Order 13 May 2011.
[5] Paragraph 8, Order 13 May 2011.
[6] Paragraph 13, Order 13 May 2011.
[7] Paragraph 16, Order 13 May 2011.
[8] Paragraph 17, Order 13 May 2011.
[9] Paragraph 18, Order 13 May 2011.
[10]Paragraph 24, Order 13 May 2011.
The mother appealed the May 2011 Order. The appeal was heard by the Full Court in September 2012. On 13 March 2013, the appeal was dismissed.
On 27 September 2012, prior to the Full Court pronouncing its Order and delivering Reasons for Judgment in support of the same, the mother filed an Application in a Case (“the current Application”), seeking orders to the effect that:
a)the father, at his cost, enrol the child at the I School and in particularised activities and provide him with a private tutor/learning support person for an hour on four (4) afternoons per week;
b)the father “escort the child to school for the purpose of administration of his medication by way of the school’s nurse”;
c)there be a “review” of the May 2011 Order such that the following ‘amendments’ be made:
i)that she be at liberty to telephone the child on two (2) occasions per week (this being a reversal of the existing Order which provides that the child is at liberty to telephone the mother twice per week);
ii)that effective immediately the father make the child available for no less than one joint session per week with the mother, child and the nominated consulting psychiatrist and for any individual sessions deemed necessary by that physician and the father meet the costs of the same;
iii)there be a declaration that the presumption of equal shared parental responsibility is in the child’s best interests;
iv)that the child be at liberty to spend time with either parent as he expresses directly to the consulting psychiatrist who must notify both parents of any such request as he deems appropriate;
v)that the father “must comply” with all recommendations made by Dr L and the consulting psychiatrist “in addition to providing the specialists promptly with copies of all academic performances and correspondence with regards to the child’s current situation”;
d)the Court apply a $6,000.00 penalty to “all of the father’s contraventions of the Orders of the Court with the funds being placed into the trust account held for the child by the mother”;
e)the father pay for any fees associated with the child’s request to obtain a degree in aviation and/or obtain a pilot’s licence directly to the provider of the services when they fall due.
Consistent with Clause 24 of the May 2011 Order, the mother also sought that she be granted leave to file the current Application.
On 8 November 2012, Murphy J granted the mother leave to pursue the current Application. His Honour also ordered that each party receive a transcript of the proceedings before him, free of charge, and a copy of the settled ex tempore Reasons he delivered that day (“the November 2012 Reasons”).
By Response to an Application in a Case filed 12 June 2013, the father seeks that the current Application be “summarily dismissed”:
a)pursuant to rule 10.12(c) of the Family Law Rules 2004 (Cth) (“the Rules”) on the basis that it is vexatious or an abuse of process; or
b)pursuant to rule 10.12(d) of the Rules on the basis that it has no reasonable likelihood of success; or
c)by virtue of the application of the principles set out in Rice v Asplund (1979) FLC 90-725 because the mother has failed to establish a significant change in circumstances so as to warrant the Court undertaking further consideration of the matter.
Is the Application for summary dismissal ‘too late’?
The mother asserted that she believed the father’s application that the current Application be summarily dismissed came “too late”. By this, I understood her to mean that there had already been a judicial determination that she had established sufficient changed circumstances so as to justify a Court embarking upon a further consideration of the matter.
To support such assertion, the mother relied on a ‘finding’ she asserted had been made by Murphy J in the November 2012 Reasons to the effect that circumstances had, in fact, changed, and that such change was sufficient for her to prosecute the current Application.
The November 2012 Reasons were delivered by his Honour before the mother’s appeal against the May 2011 Order was determined. As noted, his Honour was then dealing, amongst other things, with the mother’s Application for leave to file an application in respect of the child and the May 2011 Order.
A perusal of the November 2012 Reasons reveals that, contrary to the interpretation adopted by the mother, his Honour said, at paragraph 29:
In the event that the appeal is unsuccessful, it is for the mother to establish that there are changed circumstances that would justify variations to the Orders made by way of final Order after a lengthy trial involving extensive evidence including extensive expert evidence and lengthy Reasons for Judgement referring to that evidence.
And further, at paragraph 32:
Of course, it is possible that the appeal might be dismissed. In that event, my orders would pertain and the mother would need to establish that there has been a change of circumstances.
And at paragraph 41:
In effect, the mother seeks to re-ventilate that issue (although she does not express it in those specific terms) by reference to her assertion that [the child] is expressing views that might be seen to be different to that. If she is right – and I emphasise the word “if” – then, given his now age, that is a matter that, too, might substantiate a case by her that there has been a material change in the sense in which the authorities referred to it.
It is clear that, contrary to the assertion made by the mother, his Honour did not make any finding about whether changed circumstances justifying a further consideration of proposed variations to the May 2011 Order, made in the circumstances outlined by his Honour in the May 2011 Reasons, had been established.
It follows, therefore, that the mother’s submission that the application for summary dismissal of the current Application should be dismissed on the basis that there has already been a favourable judicial determination as to the existence of sufficient changed circumstances to warrant further consideration of the matter, cannot be accepted. It is not “too late” for the father to seek ‘summary dismissal’ of the current Application.
Whilst the father’s application proceeds on alternative grounds, I consider that a consideration of whether there has been a sufficient change in circumstances since the May 2011 order pertains to all bases relied upon. This is because it could hardly be concluded that the current Application is “vexatious” or an “abuse of process” or has “no reasonable likelihood of success” if there was established such changed circumstances of the nature and extent as would satisfy the “rule” in Rice & Asplund (1979) FLC 90-725.
Are there changed circumstances and are they sufficiently significant to warrant further consideration?
Counsel for the father submitted that the current Application should be dismissed because the mother has failed to discharge the onus of establishing a change of circumstances of such significance as to warrant the Court undertaking a further consideration of the matter. Such submission rests upon the operation of the “rule” in Rice & Asplund, where Evatt CJ, with whom Pawley SJ and Fogarty J agreed, said at page 78,905 – 78,906:
The principles which, in my view, should apply in such cases are that the Court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the Court would need to be satisfied by the Applicant that, to quote Barber J, there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material (passage quoted in Hayman and Hayman (supra), at page 75,680). These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the Court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the Court in reviewing a custody order will vary from case to case.
Once the Court is satisfied that there is a new factor or a change in circumstances, then the issue of custody is to be determined in the ordinary way.
Subsequent authority in relation to the “rule” in Rice and Asplund establishes that:
a)it is a matter of discretion at which stage of the proceedings the Court considers the Rice and Asplund issue,[11] there being no principle that the “rule” should never be considered prior to a hearing on the “merits”;[12]
[11] Bennett and Bennett (1991) FLC 92-191 at 78,262.
[12] Caracini & Paglietta [2009] FamCAFC 188 at [18].
b)in applying the “rule”:
i)the Court must determine whether the party seeking the variation or discharge of an existing order, whose evidence arguably should be accepted for the purpose of the application, has established there is a sufficient change of circumstance so as to justify embarking on a hearing of the application;
ii)the Court is bound to take into account the ‘best interests’ consideration and to apply the legislative requirements;[13]
[13] Miller & Harrington [2008] FamCAFC 150 at [72].
iii)there is a possibility that, in a “preliminary” hearing for the purpose of ascertaining if an application for parenting orders should go no further, some resolution of factual disputes may occur – for example whether a change of circumstances has or has not occurred; [14]
[14] Ibid at [81].
iv)the qualitative question of whether a change is or is not sufficiently significant to justify a full further hearing of a parenting issue may be more difficult to answer in a preliminary hearing involving resolution of only some disputed facts;[15]
[15] Ibid at [82].
c)a purpose of the rule is to discourage “endless litigation”[16] and it serves the end of avoiding the substitution by “a” judge of his or her opinion of that which is in the best interests of the child for the opinion of another judge in circumstances where both opinions are based on the same or similar facts;[17]
[16] SPS & PLS (2008) FLC 93-363 at 56.
[17] Ibid at 58.
d)it is merely a manifestation of the “best interests principle”, irrespective of the stage of the proceeding at which it is applied; [18]
[18] SPS and PLS (2008) FLC 93-363 at 48.
e)the “best interests” issue arises because, given that there are so many changes in the lives of families, those changed circumstances which will permissibly allow re-litigation of a decision must be circumscribed: otherwise there would, in some cases, exist the “spectre of endless litigation” which ends only when the child attains 18 years of age and the Court no longer has jurisdiction;[19]
[19] Marsden & Winch [2009] FamCAFC 152 at [48].
f)the application of the rule is closely connected with the nature and degree of change sought to the earlier order;[20]
[20] SPS and PLS at 48; adopted in DL & W [2012] FamCAFC 5 at 70.
g)the “rule” is founded on the idea that continuous litigation over children is not generally in their interests, it being usually hoped that the determination of a controversy concerning them by a Court will result in at least a reasonable period of stability of those arrangements and freedom from the stressful and conflictual effects of litigation on both parents and children;[21]
[21] Marsden & Winch [2009] FamCAFC 152 at 49.
h)whether in a particular case a Court should be willing to embark upon another hearing concerning a child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case having regard to:
i)the past circumstances, including the reasons for the decision and the evidence upon which it was based;
ii)whether there is a likelihood of orders being varied in a significant way as a result of a new hearing;
iii)if there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child (or children) caused by the litigation itself as, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.[22]
[22] Ibid at 50.
i)the application of the rule should not be restricted to an application which either takes an applicant’s case at its highest or a full hearing;[23]
[23] Ibid at 55.
j)a two-step process should be followed when the rule is invoked in that there is a requirement:
i)for a prima facie case of changed circumstances to have been established; and
ii)for a consideration as to whether that case is a sufficient change of circumstances to justify embarking on a hearing.[24]
[24] Marsden & Winch [2009] FamCAFC 152 at 58.
k)the focus of the enquiry must be to determine whether there are changed circumstances sufficient to warrant an application being made with the consequence that issues previously considered by a Court will be re-litigated;
l)when the rule is considered at a preliminary stage neither the expressions “summary dismissal” or “striking out” may be the best term to describe the procedure because, at whatever stage the rule is applied, the Court is bound to take into account best interests considerations and also because specific requirements, including legislative requirements, apply;[25]
[25] Miller and Harrington [2008] FamCAFC 150 at [72].
m)as the application of the “rule” occurs within proceedings to which the provisions of Division 12A of Part VII of the Act apply:
i)the Court hearing argument as to the application of the rule at a preliminary stage is bound to apply the provisions of Division 12A of the Act, included in which are the mandatory requirements:
(i)to decide which of the issues in the proceedings require full investigation and which may be disposed of summarily: s 69ZQ(1)(a) of the Act;
(ii)to deal with as many aspects of the matter as it can on a single occasion: s 69ZQ(1)(g) of the Act.[26]
[26] Ibid at [74].
ii)the Court is empowered to make findings of fact in relation to the proceedings, to determine a matter arising out of the proceedings and to make an order in relation to an issue arising out of the proceedings if it considers that it may assist in the determination of the proceedings – the Court may do any of these matters at the same time as making final orders: s 69ZR of the Act;
iii)the Court is 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: s 68ZN(3) of the Act;
iv)the proceedings are to be conducted 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.
n)The Court should have regard to policy considerations such as that:
i)there be an end to litigation so as to limit or minimise, in this jurisdiction, the “enormous psychological harm” parents would inflict on each other and the child as a consequence of the ability to canvass again and again the question of “custody” of a child;[27]
ii)continuing and seemingly endless and inconclusive litigation is usually emotionally damaging to the litigants and is likely to affect children adversely in that it impairs the ability of the primary care provider to deal with the present and plan for the future of the family, is financially burdensome and undermines stability which is often an essential prerequisite to children’s well-being;[28]
iii)the important private interests of children are unlikely, save in special circumstances, to be served by frequent displacements of them and the uncertainty of prolonged and repetitive proceedings.[29]
o)if addressed as a preliminary matter the “rule” is clearly more effective in discouraging “endless litigation” than if it is applied at the conclusion of a hearing.[30]
p)a change in relevant facts may take on a significance because of legislative amendments that it would not have possessed before them.[31]
[27] McEnearney and McEnearney (1980) FLC 90-866 per Nygh J at 75,499.
[28] Freeman and Freeman (1987) FLC 91-857 per Strauss J at 76,470-71.
[29] CDJ v VAJ (1998) 197 CLR 172 at 204 [118] per McHugh, Gummow and Callinan JJ.
[30] DL & W [2012] FamCAFC 5 at 69.
[31] SPS & PLS (2008) FLC 93-363 at 87.
See also the comments of Nygh J in In the Marriage of McEnearey (1980) FLC 90 – 866 at 75,499; G & G [2000] FamCA 12 per Holden and Jerrard JJ; F and Finneran (2001) FLC 93-079 per Collier J at 85,449.
Unsurprisingly, the mother opposes the father’s Application for “summary dismissal” of the current Application.
How are the mother’s objections to evidence determined?
The mother seeks that the father’s Application dated 12 June 2013 be dismissed on the basis that it was not served upon her three (3) clear days before the hearing. She also seeks an order that the father’s affidavit, filed 12 June 2013, be “removed” from the file as it was not served in accordance with the Rules. In the alternative, the mother seeks orders for the striking out of material, particularised at page 4 of her written submission, which she says is third-party hearsay, irrelevant, or speculative.
These proceedings are child related proceedings within the purview of Division 12A of Part VII the Act. Consequently, pursuant to s 69ZT(1) of the Act certain specified provisions of the Evidence Act1995 (Cth) do not apply.
I am not persuaded that there is substance in any of the objections taken by the mother.
Further, having regard to the legislative directive contained within s 69ZN(1) of the Act and Principle 5 as expressed by s 69ZN(7) of the Act, I am not persuaded by any of the mother’s submissions as summarised in paragraph 22.
Should the Court exercise the discretion to deal with the rule in Rice and Asplund at a preliminary stage of proceedings?
Given the fact of an eight (8) day trial before Murphy J, the history of this proceeding as summarised by his Honour in the May 2011 Reasons, the findings made by his Honour as expressed in the May 2011 Reasons, the Full Court’s dismissal of the mother’s appeal against the May 2011 Order and the similarity between the orders sought by the mother in the current Application and those sought by her by way of an Amended Application in a Case, filed 10 September 2010 (“the September 2010 Application”) which was before Murphy J, I consider that the issue of whether the mother has established sufficient changed circumstances as to warrant re-litigation of the parenting proceedings is an issue which may be disposed of summarily.[32] I also consider that it is in the child’s best interests, having regard to the likely deleterious impact on the child of further litigation between his parents in respect of matters which were raised before Murphy J at the trial,[33] that I consider the “issue” of the application of the “rule” in Rice and Asplund at this point in time.
Is there similarity between what the mother relies on now as an asserted change of circumstances and those matters which were determined at trial?
[32] See s 69ZQ(1)(a).
[33] See s 69ZN(3).
The similarity between the orders sought in the current Application and those sought in the September 2010 Application (filed prior to the commencement of the eight (8) day trial before Murphy J) was recognised by Murphy J when his Honour said, at paragraph 14 of the November 2012 Reasons:
On both occasions, the mother seeks an order that:
a)[X] attend [a named private school] or similar private school;
b)the father pay for [the child] to attend specified extra-curricular activities and private tuition;
c)as an alternative to the mother having sole parental responsibility, that the parties have equal shared parental responsibility;
d)[The child’s] medication [in respect of what might broadly be described as an attention deficit disorder of some type] be provided by the [boarding school in the orders sought a trial] and [by the father in the orders sought in her current application] in accordance with [Dr L’s] recommendations;
e)the father comply with all of the recommendations of [Dr L];
f)the father pay $6,000.00 into a trust account held by the mother to the child for all of the fathers “contraventions” of the orders of the Court.
And further, at paragraph 15:
It will be appreciated, then, that there is in fact significant similarity in, at the very least, the underlying issues relating to the [child’s] best interests that were canvassed at a very lengthy trial.
And further, at paragraphs 33 and 34:
I have earlier set out the matters referred to in the current Application which can be seen to be, effectively, a mirror of earlier orders sought by the mother. Although the father does not participate in these proceedings actively, he opposes them in his affidavit. Clearly by implication, he suggests that leave ought not be granted to the mother to pursue the Application and it is plainly implicit from his affidavit, as it seems to me, that he asserts that the mother merely seeks to re-agitate issues that were live before the Court and dealt with at the earlier trial.
In circumstances where there can be seen to be significant similarity between the orders sought in the earlier Application by the mother of the Application made by her today, the father’s position has some substance.
I agree with his Honour’s comments. It is clear, I consider, that there is significant similarity between the matters raised by the mother in the current Application and those which were considered by his Honour in the formulation of the May 2011 Reasons and in respect of which his Honour ordered as he did, in the May 2011 Order. Consequently, they do not amount to changes in circumstance.
What was the basis upon which the mother was given leave to ‘pursue’ the current Application?
I consider it apparent, from a perusal of the November 2012 Reasons, that Murphy J was persuaded to grant the mother leave to pursue the current Application because of the following:
a)the mother’s assertion that the child, now aged nearly 15 years, was seeking to re-engage with her; [34]
b)given his Honour’s finding[35], set out at paragraph 131 of the November 2011 Reasons that he was not persuaded that the child’s academic performance had deteriorated as ‘alleged or at all’, there seemed to be at least some prima facie evidence to suggest that the child’s performance in or about his schooling had, since then, significantly deteriorated;[36]
c)the mother’s assertion that, contrary to the position found by his Honour that “almost every statement by [the child] since coming into his father’s care is wholly negative of the mother and wholly positive of the father and his time with the father”, the child is now expressing views which might be seen to differ from that position and that, if the mother is correct in this, given the child’s age, such change of attitude/position is a matter that might substantiate her case that there has been a material change in the sense to which the authorities refer.[37]
[34] Paragraph 38, page 6 Reasons for Judgment delivered 8 November 2012.
[35] Paragraph 131, page 43 Reasons for Judgment delivered 13 May 2011.
[36] Paragraph 39, page 7 Reasons for Judgment delivered 8 November 2012.
[37] Paragraphs 40 and 41, page 7 Reasons for Judgment delivered 8 November 2012.
Given my conclusion as to the similarity of matters other than these with those before Murphy J at the trial, as outlined in paragraphs 27 to 30, I consider that, if the mother is to establish a sufficient change of circumstance as to warrant re-litigation of the existing parenting order, it may arise from these matters identified by his Honour.
Has the child sought to re-engage with the mother and has he changed his attitude/position toward her?
The May 2011 Reasons contain the following relevant findings:
a)that, in the time from November 2007 until the trial the child had, effectively, told anyone who would listen to him that he wanted to continue living with his father and did not wish to have any meaningful face to face contact with his mother;[38] and
b)that the child had frequently and consistently expressed his views, the central theme of which was that he neither wanted to see his mother nor to have anything meaningful to do with her.[39]
[38] Paragraphs 27 & 28, page 20 Reasons for Judgment delivered 13 May 2011.
[39] Paragraph 29, page 20 Reasons for Judgment delivered 13 May 2011.
The mother’s affidavit, filed 27 September 2012, does not contain within it, any assertion from which it could be concluded that, since the May 2011 Order, the child has attempted to instigate contact or communication with her.
At page 6 of her written submission[40] the mother asserts: “[X’s] reasons for breaking into the school’s computer mainframe was to access information on his mother.” Save for a comment by a Ms K, Acting Dean of Students at the boarding school, that ‘he [the child] said he had logged on as [Director of Learning] and had read an email from his mother, there is absolutely no evidentiary basis for this assertion. I consider it to be unfounded. It represents a conclusion drawn by the mother that the child’s actions were in some way linked with what she asserts is his desire to recommence a relationship with her rather than as part of a ‘hacking’ activity in which he was engaged.
[40] Marked “A”.
In an email dated 24 September 2012[41] the mother makes reference to “our child’s recent request for contact” in the context of discussions about the child’s departure from boarding school, medication and her request that the child attend upon the psychiatrist provided for in clause 8 of the May 2011 Order. However, it is important to note, in passing, that clause 8 of the May 2011 Order provided that the child consult an appropriately qualified child and adolescent psychiatrist as and from 1 December 2012. Consequently, it is clear that, contrary to the mother’s interpretation of the May 2011 Order, at the time she wrote this email, the therapeutic process envisaged by clause 8 was not yet required to be implemented.
[41] Which forms part of annexure ‘LKG-4’ to the affidavit of Ms Gingham filed 27 September 2012.
Annexure ‘LKG-8’ to the mother’s affidavit filed 27 September 2012 comprises various email correspondence between the mother, the Independent Children’s Lawyer and the father’s solicitor. First in ‘the series’ is an undated email from the mother to the Independent Children’s Lawyer and the father’s solicitor. In contrast to every other email communication attached by the mother to her affidavit, it does not contain the usual identifiers (such as ‘from’, ‘sent’, ‘to’ and ‘subject’) that appear routinely at the commencement of email correspondence. This undated correspondence contains, amongst other things, the following assertion:
Please be advised that my son [X] has recently contacted me by way of phone stating that he “loves me very much and would like to spend some time with me this coming weekend.”
The mother then proposes a number of options to facilitate this proposed interaction.
Further email communication dated 10 August 2012 contains the following:
Our son initiated and requested contact on no less than three (3) occasions with the first and second phone call made on 29 July and the last at 7:30 pm several days later. During these conversations I asked my son if there was anything that he needed? To which he replied “he was very cold in [C Town]” – hence I posted down new warm pyjamas and slippers last week. In addition to this request our son advised me on numerous occasions that “he was missing me heaps and loved me very much.” The requests for contact occurred on the last of the three (3) phone calls made by our child. All phone calls received were witnessed by an independent third person and can be easily authenticated. I am at a loss to understand how the respondent father can deny such events occurred given the overwhelming evidence to support same.
Despite the assertion that the child’s request, via telephone, for interaction with the mother was witnessed by “an independent third person and can be easily authenticated”, no such evidence was provided to the Court by the mother. Given the significance of this request, if made by the child, coming as it does seemingly out of the blue in circumstances where he has not had any face to face contact with his mother since November 2007 (a passage of nearly 5 years) and has acted in the manner described in paragraphs 28 and 29 of the May 2011 Reasons, it is incomprehensible to me that the mother would fail to obtain evidence from the independent third person who could, on her case, so easily authenticate its occurrence.
This failure was not remedied by the mother in the period from 8 November 2012 until the hearing before me despite Murphy J saying, at paragraphs 40 and 41 of the November 2012 Reasons, that:
Thirdly, I expressed concern at [30] of my trial Reasons about the “tone and content” of many of the statements made by a then 13-year-old boy about his mother. I pointed out that the evidence reveals that:
... almost every statement by [the child] since coming into his father’s care is wholly negative of the mother and wholly positive of the father and his time with the father.
In effect, the mother seeks to re-ventilate that issue (although she does not express it in those specific terms) by reference to her assertion that [the child] is expressing views that might be seen to be different to that. If she is right – and I emphasise the word “if” – then, given his now age, that is a matter that, too, might substantiate a case by her that there has been a material change in the sense in which the authorities referred to it.
These comments can only be interpreted as emphasising the importance for the mother to substantiate her assertion that the child was recently expressing views different to those he had expressed prior to the May 2011 Order.
Email correspondence dated 14 August 2012 from the mother to the Independent Children’s Lawyer and the father’s solicitor contains the following:
It is obvious that your client sent the purported text message from our child’s phone and not [the child] most likely as a direct result of our child informing him (the father) of his recent request and contact with myself.
Email correspondence dated 17 August 2012 from the mother to the Independent Children’s Lawyer and the fathers solicitor contains the following:
As a consequence of recent events and circumstances surrounding [the child’s] request to resume contact with me and his statements that “he is missing me heaps and loves me dearly”...
There is no evidence, other than the mother’s continued repetition of the assertion that the child had asked to resume contact with her, to support her assertion that he had done so.
The mother also asserts that the father has refused to allow the child’s request for time with her to proceed in accordance with the terms of the May 2011 Order and has further failed to provide the child with the “appropriate medical or psychiatric support” to enable him to best deal with the current changes.[42]
[42] Paragraph 23, affidavit of Ms Gingham filed 27 September 2012.
However, the father relied on a report prepared by Dr D, a child and adult psychiatrist engaged by the parties for the purpose of implementing the May 2011 order. Dr D saw the child on 19 November 2012 and 25 February 2013. He does not think the child has any major psychiatric or psychological issues and does not think that the child needs regularly to see a child psychiatrist at this point.
In his report, dated 6 March 2013, Dr D recounts that, when he agreed to be involved in this case, he had assumed that he would see the child on his own for several sessions and also speak extensively with both the mother and father. However, having spoken with the child, he has changed his mind about this proposed course because he thinks it “would be a waste of everyone’s time and money and would only serve to further aggravate [the child].”
Dr D says that the reason for his change of mind is that it is “completely obvious” to him now that the child has absolutely no wish to see his mother and he [Dr D] does not see the child’s opinion on this changing in the near future. This expression by the child of a desire not to have interaction with the mother mirrors the attitude recounted within the May 2011 Reasons. It certainly does not evidence a change of attitude by the child toward the mother, nor does it suggest that the child is seeking the mother out or seeking to re-engage with her.
Dr D recounts that, during his second interview with the child, when just the two of them were in the room, the child told him that he did not think his opinion about seeing his mother would ever change, not even when he was an adult. Dr D records that the child said “I don’t want to have any contact with her, because she just always mucks up my life, in anything she is involved with... And she is just not very nice person to be around... (She) doesn’t care about anyone but herself.” Such comments are consistent with those recorded in paragraphs 29 and 75 of the May 2011 Reasons and certainly do not evidence a change in the child’s position.
Dr D makes the point that the truth or otherwise of the matters recounted to him by the child during their interactions is not as important as the child’s complete belief in what he says. Dr D assesses that the child is “unshaken”, in his conviction that he does not wish to see his mother. Again, this position is consistent with the child’s view as recounted in the May 2011 Reasons.
Dr D expresses the opinion that he does not think talking to anybody, any kind of counselling or therapy is going to change the child’s opinion. For this reason, he has decided that it is pointless for him to continue seeing the child if the point in so doing is to facilitate the child’s time with his mother. He says that he will not force the child to continue to see him and will not try to persuade him to have contact with his mother because he believes this would not be successful and could possibly be counter-productive if, at some point in the future, the child needed to see him because he was having difficulties at home or school.
Other than as referred to above, there is nothing in the mother’s affidavit to support a conclusion that the child is now expressing views other than those which remain wholly negative toward her.
Further, as noted above, it is apparent from Dr D’s report that the child has continued consistently to express his desire neither to see the mother nor have anything to do with her. He continues to express comments similar to those recounted at paragraphs 29, 75 and 99 of the May 2011 Reasons. There is no demonstrated change in his attitude or his position in so far as it relates to the mother.
The father says[43] that the child deliberately does not use his mobile telephone anymore and has not for some time so that the mother cannot contact him via that means. He says that text and voice messages on the telephone were becoming “a regular method by which” the mother attempted to contact the child so that he switched the phone off and stopped using it. Such information is corroborated by Dr D. In addition, the father says that, despite the mother leaving a package for the child before Christmas with Dr D, the child told him that he did not want to collect the parcel and so they did not.
[43] Paragraph 21, affidavit of Mr Gingham filed 12 June 2013.
In February 2013, the child received a postcard from the mother. He told the father that it (the postcard) said that she (the mother) was going to hospital for major surgery and wanted to see him while she was “still good”. The father records that the child did not ask him to facilitate any contact with the mother.
Consistent with that which is recorded in the May 2011 Reasons, the father says that the child does not mention the mother in any context, does not say that he wants to see her at any time and has continued to tell the father and others that he does not want to see her. There is nothing in the father’s evidence to suggest that there has been a change in the child’s attitude toward the mother.
Has there been a deterioration in the child’s academic performance and social behaviour?
The child commenced at E School (“the School”) on 15 October 2012. He told Dr D that he has settled there more easily than he did at previous schools because he already had friends there who he had known from primary school.
At the conclusion of Term 1 2013, the School prepared a report, printed 26 March 2013 (“the March 2013 report”), in relation to his achievements. Given the mother’s assertion that the child has experienced and demonstrated deterioration in behaviour and achievement to such an extent that it amounts to a significant change of circumstance, it is instructive to set out the results of this report in some detail.
Learning area Achievement Effort Behaviour Home work Interview English D Satisfactory Very good B Requested Mathematics foundation C Satisfactory Satisfactory C Welcome but not requested Science A Very good Excellence A Welcome but not requested Geography C Very good Satisfactory C Welcome but not requested Legal studies year 10 D Satisfactory Very good B Requested Robotics and programming D Needs attention Satisfactory C Requested Access Very good Very good Essentials behaviour C Essentials effort B
When regard is had to paragraph 129 of the May 2011 Reasons, it is immediately apparent that, in contrast to the results summarised there, the child recently received an ‘A’ for the very first time. His current results of an A, three (3) D’s and two (2) Cs do not, I consider, represent a “significant deterioration” from those previously recorded - in particular, I note that, for Semester 1 2007, the child received two (2) Cs and four (4) D’s whilst in Semester 2 2010 he received one (1) B, six (6) C’s and one (1) E.
Further, a perusal of his various school reports[44] reveals that, whilst at boarding school in the period following the May 2011 Order, he received the following:
a)Semester 1, 2011: two (2) B+s, one (1) B, two (2) C+s, four (4) Cs and one (1) C minus.
b)Semester 2, 2011: five (5) C+s, three (3) Cs and one (1) C minus;
c)Semester 1, 2012: one (1) C+, six (6) Cs, one (1) C minus.
[44] Exhibited to the mother’s affidavit and contained within the documents from the Department of Education tendered by the mother.
Again, I am not persuaded that the child’s current academic results evidence a “significant deterioration”.
Irrespective of his academic achievements, it is clear from the March 2013 report that, across all subjects, the child’s behaviour has ranged from no less than “satisfactory” to “excellent”. Further, following observation of communication between the child and Ms F, the father’s partner, Dr D said that he was not left with the impression that the child had any significant behaviour problems.
Despite the March 2013 report, which suggested significant improvement in behaviour, and Dr D’s opinion, the child was suspended for one week as a consequence of his involvement in taking another student’s wallet from a school bag.[45] Whilst he told the school and the father that he had done this as a joke, with the intention of putting the wallet back in the bag, neither the father nor the School accepted these excuses and he was suspended for five (5) days from 17 May 2013 to 24 May 2013. During this time, he was provided school work to complete to allow him to continue with his education.
[45] Department of Education’s Behaviour report dated 16 May 2013
The mother relies on this suspension as demonstrating a significant change in the child’s behaviour so as to warrant further litigation of the existing parenting order. Taking into account the observations of the child’s behaviour referred to in paragraph 63 I am not persuaded that this is the case. I am not persuaded that the fact of a suspension amounts to a “change of circumstance” or, if it does, that it is sufficiently significant to justify a full further hearing of a parenting issue.
The mother also relied on an email from Ms F, dated 13 April 2013[46], to the school in relation to a parent teacher interview as a basis for the assertion that the father and Ms F were “away overseas during the suspension”. Despite the mother’s assertion, it is clear that they were away during the week of 24 April 2013 and, therefore, not during the suspension which occurred in May 2013.
[46] tendered from the Department of Education subpoenaed material
The fact that the mother maintained her assertion that the father and Ms F were absent during the child’s suspension in the face of clear documentary evidence held by a ‘non-party’ external source to the contrary, causes me to reflect very seriously upon her assertion, uncorroborated by any third party, that the child has started to seek her out and evidence a desire to recommence a relationship with her. It also provides another example of the mother interpreting matters as she hopes they are rather than how they, in fact, are.
In addition to those matters identified by Murphy J and referred to above, the mother relied upon a number of other matters which she asserted amounted to a sufficient significant change of circumstance as to justify a further full hearing.
The change of school
The May 2011 Reasons found that the child was currently attending a school in C Town as a boarder.[47] He no longer attends at this school, it having advised in September 2012 that it was unable to maintain a place in boarding for him.
[47] Paragraph 23, page 19 Reasons for Judgment delivered 13 May 2011
The mother says that the child was expelled for “criminal acts as a consequence of father not providing appropriate medical or educational support or complying with the said Orders of the Court for reintegration with the mother.” Her position is that the father “recklessly” authorised a decrease in the child’s ADHD medication which resulted in deterioration in his behaviour and the cessation of his enrolment at the boarding school. She relies upon the child’s ‘expulsion’ from this school as constituting a change of circumstance sufficient to warrant a re-litigation of parenting proceedings.
It is not contentious that, in September 2012, the father was informed by the boarding school staff that the child’s position at the school was becoming untenable and that, subsequently, there was no longer a place for him there effective immediately. The basis of the school’s decision rested upon the fact that the child had breached school rules by hacking into its computer system, destroying another child’s laptop and bullying the same child over Facebook and that, whilst he had rectified some of his behaviour and apologised to the child, it was considered that his behaviour justified the immediate request that he leave the school.
A perusal of correspondence, dated 18 September 2012, from Dr L, from the Queensland G Centre, notes that the deterioration in the child’s behaviour occurred after the doctor had decreased his medication following concerns about toxicity or overdose effect consequent upon its long-term use. The mother does not take issue with the contents of Dr L’s report, noting that it confirmed “that the medication was responsible for the sudden deterioration” in the child’s academic and medical condition. [48] Further, Dr L subsequently changed the child’s medication because of his concern that it was no longer effectively managing the child’s behaviour.
[48] Paragraph 16, affidavit of Ms Gingham filed 27 September 2012.
In this context, I am not persuaded that the fact that the child ceased to attend at boarding school amounts to a change of circumstance of sufficient significance as to justify a full further hearing of parenting issues.
Further, whilst the mother submitted that she seeks the interim parenting orders particularised in the current Application “as a direct consequence of the father’s actions to unilaterally change the child’s schooling arrangements for the fifth time in five (5) years”[49], I accept the submission made by Counsel for the father to the effect that, given the allocation of sole parental responsibility to the father in the May 2011 Order, a change to the child’s schooling arrangements does not amount to a change of circumstance of such significance as to warrant further litigation.
[49] Paragraph 1, affidavit of Ms Gingham filed 27 September 2012.
Subsequent attendance at a state school
The child was collected by the father from boarding school on 17 September 2012. The father says that, in accordance with the May 2011 Order, he notified the mother of events by email on 18 September 2012.
On 19 September 2012, the mother responded to the father’s email. She outlined her opposition to the child attending at a state school and reiterated her view that I School was the only other viable option available for the child.
By correspondence dated 26 September 2012, an alternative private school told the father that it was not able to offer the child a place and conveyed that, if the father wished to reapply later, the child would need to demonstrate an improvement in his school reports and, in particular, behaviour.
On 8 October 2012, the husband, via his solicitor, informed the mother that the child’s application to attend at the alternative private school had been unsuccessful. He further informed her that, following his deliberations and discussion with the child, he had decided to enrol the child at the School.
By correspondence dated 10 October 2012, the father informed the mother of his decision not to apply to enrol the child at the I School.
An entry[50] dated 15 October 2012 records that the mother had sent emails to the School asserting that there was in existence a court order which stipulated that the child had to attend at a private school. This is not the case.
[50] in documents produced by the Department of Education
The mother says that the father’s refusal to provide or pay for private education for the child, in circumstances where “the parents have agreed upon as found by the Courts to be for the remainder of his educational career”, amounts to a change of circumstance sufficient to warrant re-litigation of parenting proceedings.
I do not accept this submission. It is clear from the May 2011 Reasons that the child had previously attended at both a privately funded school and a state school (whilst staying with a family outside Brisbane.)
Further, the father has been accorded the sole responsibility of making determinations about the child’s schooling. That he has acted in discharge of this responsibility does not in this case, in my view, amount to a change of circumstance for the purpose of the ‘rule’ in Rice and Asplund.
A second broken arm
The mother asserts that the child has suffered a second broken arm “as a consequence of non-medication in accordance with the terms of Orders of the Court”. She submits that the fact of this injury establishes a change of circumstance of such significance as to warrant further litigation. In explanation, the father says that the child suffered an injury to his wrist and bruising to his elbow as a consequence of an accident whilst mountain biking.
The issue of the child suffering injury allegedly as a consequence of the asserted non-compliance with the medical regime proposed by his treating medical specialists was litigated before Murphy J at the trial. Taking this into account as well as noting the existence of a plausible explanation for the child’s injury, I am not persuaded that this event amounts to a changed circumstance of such significance as to warrant further intervention by the Court.
Asserted failure to attend to child’s medical needs or provide information
The mother submits that the father has refused to attend to “appropriate medical requests or appointments as requested pursuant to current Orders” and has refused to allow the child to receive the “correct medical support” that he needs which has resulted in “significant issues” being ignored.
She relies upon the difficulties at the boarding school as recounted above. She also asserts that the father failed to monitor and provide the treating paediatrician or the boarding school with “appropriate feedback”. Given the evidence of Dr L referred to above, I am not persuaded by this submission. I also note that it is a repetition of at least the same type of assertion made by the mother at the trial before Murphy J.
The mother continues to assert that the father does not provide the child with the medication prescribed by his treating paediatrician and that he refuses to provide medical support.
In a manner similar to that summarised in the May 2011 Reasons, the father contests the mother’s assertions and maintains that he continues to comply with all regimes prescribed by Dr L for the child in terms of his care and medication and that he continues to ensure that the child attends regular appointments with Dr L.
The mother tendered a number of documents produced by Dr L pursuant to subpoena. Many of these pre-dated the trial before Murphy J. These clearly do not assist the mother in attempting to establish a change of circumstance. Those documents which postdate the May 2011 order confirm that the child was seen, as a matter of urgency, by Dr L following his cessation of attendance at boarding school. Rather than substantiating the assertion made by the mother, this correspondence appears, to me, to confirm and support a conclusion that the father has, in fact, ensured that the child has been seen by his treating paediatrician in order to continue to manage his ADHD. It is also clear that after the child left boarding school, Dr L changed his medication to Ritalin because he was concerned that the previous medication was no longer effective in controlling the child’s impulsive behaviour. I am not persuaded that the contents of the documents establish a change of circumstance.
The mother asserts that the father cancelled her August 2012 appointment with Dr L. She says that this had the consequence that she could not do something to alert the school or him about the “major issue” with the child’s medication and “sudden deterioration in academic results”.
Dr L’s file does not contain any correspondence from the father’s solicitors purporting to cancel the mother’s appointment. The only document relevant to this issue is correspondence, dated 20 July 2012, from Dr L to the mother in which the following appears: “the appointment you made with this clinic has been cancelled.”
In dealing with this apparent inconsistency, the mother submitted that the file lacked certain correspondence from the father’s solicitor cancelling this appointment. Even if the mother’s assertion was accepted, it does not, in my view, establish a sufficient change in circumstances so as to warrant further re-litigation of the matter.
The mother raised complaints about the father’s management of the child’s medical issues at the trial and these were assessed and considered by Murphy J. The mother’s current assertions are, simply, more of the same.
Asserted failure to provide the mother with medical, educational and other significant information
The mother asserts that the father has deliberately not complied with the terms of the May 2011 Order and has not supplied her or medical practitioners with medical and educational correspondence. She asserts that she presently receives such information up to one year after the fact and not from the father.[51] Even if this is correct, it is, I consider, a matter for enforcement of the May 2011 rather than a changed circumstance warranting further litigation of the parenting issues.
The mother’s request for the discharge of the injunction preventing her from contacting the child’s school
[51] Paragraph 22, affidavit of Ms Gingham filed 27 September 2012.
The mother seeks the discharge of the injunction which prevents her from contacting the child’s school. Such Order was made following a trial before Murphy J and has withstood the mother’s appeal to the Full Court. It was made following his Honour’s consideration of the mother’s behaviour in communicating with various schools previously attended by the child. I consider that there is no circumstance particularised by the mother of sufficient significance as to warrant a reinvestigation or redetermination of this issue.
Further, I consider that paragraphs 25 and 26 of the mother’s affidavit filed in support of the Application establish that, without such order she would, without doubt, be in direct contact with the child’s educational providers. Her previous involvement with schools attended by the child was clearly considered and canvassed by Murphy J in the May 2011 Reasons. There is nothing in the material before me to persuade me that there has been a significant or sufficient change of circumstance as to warrant the Court entertaining, again, a re-litigation of this issue.
Concluding comments
The May 2011 Reasons express the finding that the child’s consulting paediatricians “both recognise the necessity for medication in any treatment plan for the child and both emphasise the need for consistency and stability in his home and school environment.” [52] Nothing in the material before me suggests that it is likely that there is any change to this position.
[52] Paragraph 23, page 19 Reasons for Judgment delivered 13 May 2011.
Given the mother’s demonstrated capacity to interpret matters as she hopes or thinks them to be (see, for example, the discussions in paragraphs 9-15, 35, 36, 66 and 67.) I am not persuaded, in the absence of corroboration, that the mother has established that there has, in fact, been a change in the child’s attitude toward her since the May 2011 Order. Similarly, I am not persuaded that the child has been seeking to re-engage with the mother nor that he is now expressing views which might be regarded as being other than wholly negative of her.
Further, as is apparent from my earlier comments, I consider that the remainder of the matters relied upon by the mother in support of the current Application are the same, or of a strikingly similar type, as those which were advanced by her at the trial.
I take into account the previous lengthy trial and carefully considered May 2011 Reasons which express findings undisturbed on appeal. I have had regard to the policy consideration that there be an end to this litigation so as to minimise the potential risk of further emotional damage to the child.
I am not satisfied that the mother has established a prima facie case of changed circumstances within the requirements of the “rule” in Rice and Asplund. If I am wrong in this conclusion, I am not satisfied that any such prima facie case of changed circumstances amounts to a sufficient change of circumstance to justify embarking on a further hearing.
I am not persuaded that there is a likelihood of the existing orders being varied in a significant way as a result of a new hearing. Even if I am wrong in this conclusion, I consider, given:
a)the child’s age; and
b)the evidence of Dr D; and
c)the matters outlined in paragraph 97,
that the potential detriment to the child which may be caused by further litigation is so great and the likelihood of any significant change to the existing order so small that any potential benefit to the child is so insignificant that it does not compensate for the likely disruption and deleterious impact upon his functioning consequent upon further litigation.
I consider that the mother has failed to establish a sufficient change in circumstances as to satisfy the “rule” in Rice and Asplund. I am also persuaded, having reached this conclusion, that the current Application has no reasonable likelihood of success.
I consider that the current Application should be dismissed.
Given my determination that the current Application be dismissed, it is unnecessary that I determine the father’s application for an order for security for costs in the sum of $20,000.00.
However, I record my non-acceptance of the mother’s submission to the effect that, as there was no application for such order made prior to the appearance before Murphy J on 8 November 2012, such application cannot now be “determined retrospectively”.
In addition, given the history of this matter, the fact that the mother has failed to pay to the father costs as ordered by the Full Court on 13 March 2013 and my view that, in the circumstances of this case, the mother has negligible prospects of obtaining any order different to, or significantly different to, that which currently exists, I record that, had I been required to make such an order, I would have done so as I am easily persuaded that the circumstances justify the making of the same.
I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 17 September 2013.
Associate:
Date: 17 September 2013
6
1