HAYKAL & KRAWIEC - [2014] FamCA 1095

FAMILY COURT OF AUSTRALIA

HAYKAL & KRAWIEC

[2014] FamCA 1095

FAMILY LAW – PRACTICE AND PROCEDURE – Disqualification of judicial officer – Where the father submits apprehended bias – Where there is a long and complex history of litigation between the parties – Where the test is an objective one – Where the mother and the ICL submit that there is no valid basis for disqualification – Application dismissed.
FAMILY LAW – PRACTICE AND PROCEDURE – Discharge of Independent Children’s Lawyer (“ICL”) – Where the father seeks an order to discharge the Independent Child Lawyer – Where it is the second time the father has made an application to have an ICL discharged – Where the mother and the ICL oppose the application – Where the father did not establish that the ICL had not acted with impartiality – Where there was no merit in the father’s application – Application dismissed.
FAMILY LAW – PRACTICE AND PROCEDURE – Stay of order made for the preparation of a family report – Where the father seeks a stay of the order for preparation of a family report – Where the fundamental principle is the best interests of the child – Where the mother and the ICL oppose the application – Where it is not in the best interests of the child to stay the preparation of the family report – Application dismissed.

Family Law Act 1975 (Cth) – s 68LA

Clemett & Clemett (1981) FLC 91-013
Ebner & Official Trustee in Bankruptcy (2000) 205 CLR 337
T & L (2000) FLC 93-056
W & M and Anor [2006] FamCA 512

APPLICANT:

Mr Haykal

RESPONDENT:

Ms Krawiec

INDEPENDENT CHILDREN’S LAWYER:

Mr Holmes

FILE NUMBER:

SYC

731

2009

DATE DELIVERED:

25 July 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Johnston J

HEARING DATE:

25 July 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Haykal in person

SOLICITOR FOR THE RESPONDENT:

Ms Camilleri of Michael Conley Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

KD Holmes

Orders

That the father’s application that Johnston J be disqualified from further hearing applications in these proceedings is dismissed.
That all parties are given leave to inspect all documents produced on subpoena by the New South Wales Police and School 2.
That the father’s application for an order to discharge Mr Duncan Holmes as Independent Children’s Lawyer is dismissed.
That the Court notes that the father has appealed against the order made on 11 June 2014 for preparation of a family report.
That the Court understands that the father would propose to have a similar report prepared by a psychologist of his choosing.
That the father’s application for a stay of the orders of 11 June 2014 relating to preparation of a family report is dismissed.
That the interim parenting proceedings are adjourned to 10:00 am on 15 August 2014.
That the Court notes that the Court has written submissions on behalf of the mother and a note of the material to be relied on by her.
That the Court notes that the father relies on all his affidavits in relation to those proceedings and that each of the parties will have opportunity to address the Court in respect of the orders sought on that occasion.
That the father is given leave to have a subpoena issued and served on the child’s general practitioner Dr W and the Department of Immigration.
That the Court notes that the mother withdraws her objection to the father inspecting material produced by X Security.
That until 5:00 pm on 15 August 2014 all orders for time to be spent and communication between N born on … 2002 and her father are suspended.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Haykal & Krawiec 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 SYDNEY

FILE NUMBER: SYC 731 of 2009

Mr Haykal

Applicant

And

Ms Krawiec

Respondent

REASONS FOR JUDGMENT

Disqualification

The parties in these proceedings are Mr Haykal and Ms Krawiec. For convenience I shall refer to them as “the father” and “the mother” respectively.
The application immediately before the Court is the father’s application that I disqualify myself for apprehended bias.
The background facts are as follows. There is a long and complex history of litigation between the parties in the then Federal Magistrates Court and this Court over many years about the parenting arrangements for their children, S born in 1997 and N born in 2002. The children are now 17 years and almost 12 years of age respectively.
Final parenting orders were made by the Federal Magistrates Court on 11 February 2011. Order (5) of the orders was made with the father’s consent. It provided that S was to spend time with his father in accordance with S’s wishes. I note S does not see his father. In relation to N, the orders provided for the parties to have equal shared parental responsibility (that was also in relation to S), for the children to live with their mother and for N to spend time with her father on what were two nights per fortnight.
Amongst the package of orders which the learned federal magistrate made were orders to the effect that the parents arrange family therapy, and such family therapy was to be conducted by a family therapist nominated by the Independent Children’s Lawyer (“ICL”). The orders provided that the parties were required to attend such therapy, and the parties were to make the children available also to participate in that therapy in accordance with the directions of the person appointed to conduct the therapy.
The ICL nominated Dr D as the therapist. The mother and N have attended the therapy. The father has not attended.
These proceedings first came before me in a busy duty list on 5 March 2014. The mother had filed an application in a case seeking orders to the effect that the time between N and her father be suspended pending further order and that the father be restrained from communicating in any form with the children.
Attached to the mother’s affidavit, in support of her application, were letters from the family therapist, Dr D. Dr D had observed during her work with N that the child was becoming extremely anxious. The first letter from Dr D was dated 21 February 2013 and this was addressed to both the mother’s solicitor, Mr Michael Conley, and also to the children’s father. Omitting the formal parts, Dr D said as follows:
I have been continuing to provide therapeutic treatment to [N] in relation to her anxiety in the context of ongoing parental conflict. [N] is currently experiencing elevated symptoms of anxiety that are specifically related to conflict between her parents. She feels particularly burdened by telephone contact with her father that occurs when she is in the care of her mother. She reports to me that this can include multiple messages, being telephoned every five minutes, and feeling excessive pressure to report on behaviours and matters at her mother’s house. [N] is finding this experience extremely distressing and she feels that the situation is getting worse. Consequently, and in accordance with the orders issued, I direct both parties to limit telephone contact with [N] when she is in the care of the other parent. I specifically direct that such telephone contact be limited to one telephone call per week at a prearranged time.
There was also, annexed to the mother’s affidavit in support of her application in a case, a letter from Dr D dated 20 December 2013. As with the earlier letter, this was addressed to the mother’s solicitor and also to the child’s father, and sent to his usual address. Omitting the formal parts, this letter provided as follows:
Due to [N’s] increasing anxiety I recommend that her time with her father be suspended effective immediately. [N] will continue to see me for ongoing therapy. I invite [Mr Haykal] to make an appointment to consult with me at any time to discuss the reasons for this recommendation and work towards any therapeutic remedy to [N’s] anxiety.
Also annexed to the mother’s affidavit in support was a note which the mother said had been handed to her by the New South Wales Police. On 23 February 2014 a police officer telephoned the mother and informed her that when the police had conducted a random drug test or breath test on 20 February 2014, the father had said something which caused the police officer concern. The police officer then prepared a note of what the police officer said that the father said. I repeat that this was in February, just before the mother filed her application. And the note is as follows, and is as follows:
I’m not the only one. Every day on TV I see people killing a child and I just can’t believe I used to say that’s wrong, this, that, but after what I’ve been through I say I cannot judge nobody but I am keeping a level head for five years. I don’t know what more I will do. You understand? But I am on the verge of collapse.
Given the father’s obvious complete lack of confidence in Dr D, and what, at least in the courtroom, appeared to be a real hostility from the father towards Dr D, I endeavoured to foreshadow with the parties, including the father, the possibility of appointing an ICL who could explore the possibility of endeavouring to arrange for a different therapist to be engaged. The father appeared, to me, to agree that an ICL might be able to make inquiries about whether a different therapist might be able to be engaged.
In the light of Dr D’s observations and recommendations, and also the note by the police officer, I informed the parties that I would take a very cautious approach to the matter of N’s welfare. I suspended all orders which required her to spend time or communicate with her father until the adjourned date of 26 March 2014. I also restrained the father from attending the children’s schools or their home pending further order.
I ordered, as I said, an ICL to be appointed. And, because the father had objected to the previous ICL, Ms Alex, I ordered that a different ICL be appointed. Those who administer this scheme, presumably, officers of New South Wales Legal Aid, respected that request and they made arrangements for Mr Duncan Holmes, solicitor, to be appointed as ICL.
I adjourned the matter to 26 March 2014. On 26 March 2014 I noted that the father had indicated that he was prepared for the ICL to explore the possibility of a change of therapist. I adjourned the proceedings to 11 June 2014. I ordered that the suspension of time and communication between N and her father would continue.
On 11 June 2014 I ordered that a family report be prepared and that, as part of the process of preparing the report, the family consultant consider making an introductory appointment for N to spend some short time with her father under the consultant’s supervision.
The father had filed an amended response to an application in a case that day, in which he was seeking many orders, including orders for appointment of a different therapist, orders to discharge Mr Holmes as the ICL, orders to stop the therapist, Dr D, seeing N, orders seeking specific time between himself and his daughter and various other orders.
The father has appealed my orders and his immediate application is that I disqualify myself. In his affidavit in support of the application, the father says as follows:
I have filed in the Full Family Court of Australia an appeal against the orders of the Family Court Sydney made by Johnston J on 11 June 2014, orders number 1, 1.1, 1.2, 2 and 6.
I invited the father to put whatever material supported his disqualification application before me, and he gave me a folder of material and some letters as well. In his submissions the father informed me that the basis of his disqualification application was that he was appealing my orders, that he does not feel comfortable and does not feel “my daughter would be getting a fair trial,” that is, with me hearing such a trial.
The submissions by the learned ICL were to the effect that the father’s application would appear to be premature. This was on the basis that if the father was to succeed in his appeal, then what would happen would be that the Court would almost certainly order a rehearing or order the matter to be determined by another judge, and that therefore there is no valid basis for disqualification.
The learned solicitor for the children’s mother adopts the submissions made by the ICL in respect of the disqualification application. She says the grounds of appeal contended by the father seem to suggest that bias arises from me not hearing the father in relation to his application to reinstate time with N. And she says if that is understood correctly by the mother, the mother contends that the father has filed no evidence to establish that alleged apprehended bias.
In relation to that suggestion that the father had not had an opportunity to address the Court or put material before the Court in respect of each of those occasions when I made orders suspending the operation of the spend time and communication orders between N and her father, I make these observations. On each of those occasions the father was quite forceful in making submissions to me and putting matters to me, including his account of various matters of evidence. In fact, my recollection is that, on occasions, I had great difficulty conducting the proceedings because the father on numerous occasions spoke over me.
My recollection is that on more than one occasion I warned him that it was very difficult to conduct the matter in circumstances where he was speaking over me and probably others, where at times the volume of his address seemed to me to be almost approaching shouting, so it was a difficult experience in terms of trying to conduct a dignified court hearing.
The father had made his position very clear from the outset. I was under no uncertainty whatsoever that not only was he opposed to Dr D, but he was certainly opposed to any variation of the order which would have the consequence of him not being able to spend time with N. But I had indicated that the case was very complex, that I had asked the father to bear with me on a couple of occasions and endeavoured to bring about a situation where we could have an expert involved in the matter. So I do not accept that the father was not given appropriate opportunity to be heard.
In any event, the law in respect of judges considering an application to disqualify themselves has been set down in numerous authorities of courts, including our High Court. Learned solicitor for the mother has very helpfully included in her submissions reference to the High Court decision in the case of Ebner & Official Trustee in Bankruptcy (2000) 205 CLR 337. I accept that the governing principle is that a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.
The father really puts to the court that he has no confidence in me. He has filed an appeal. He does not think it is fair that I should continue to hear any application involving his children. And he does not think that it is fair on the children that that would be the case.
It should have been obvious to the father on 11 June that there was going to be opportunity for him to provide further submissions and have a hearing which would involve a reading of more material than I was able to do on the earlier occasions.
In my view, what the father presents in support of his application that I recuse myself in the proceedings would not come up to the test set down by the High Court, that is, a fair-minded lay observer might reasonably apprehend that I would not bring an impartial mind to the resolution of the question. In my view, the application is to be rejected.

Discharge of the Independent Child Lawyer

This is an application by the father for an order to the effect that the children’s ICL, Mr Duncan Holmes, be discharged from his responsibility as ICL. This is contained at paragraph 13.2.1 of the father’s amended response to an application in the case filed on 11 June 2014.
The father has filed a number of affidavits in support of this application, including an affidavit sworn on 5 June 2014. The father’s main complaints in this regard appear to be five.
The first of these complaints is that Mr Holmes did not comply with the orders of 26 March 2014, in that he did not bother to find a new therapist for N. In order to understand this, I made a notation during the mention of the matter on 26 March 2014. That notation was to the effect that the ICL would explore the possibility of the parents being able to engage a family therapist to replace Dr D. That was after considerable discussion between all of the parties, particularly the father, about the father’s antipathy towards and loss of confidence in Dr D. As I had indicated in an earlier judgment today in another aspect of this matter, the father had indicated that he was prepared for the ICL to endeavour to find such a replacement therapist.
Mr Holmes gave consideration to that possibility and he wrote to the father a long letter dated 10 April 2014, that the father has included in his material. Under a heading of Therapy in that letter, Mr Holmes said as follows:
The issue that I now want to raise with you is the question of whether or not it is in [N’s] best interest for me to continue to explore the issue of a replacement therapist to perform the family therapy as required by order (15) of the substantive orders.
Mr Holmes said in his second paragraph under that heading:
On 26 March 2014 it was noted by Johnston J that I would explore the possibility of an alternate therapist.
Mr Holmes goes on to say:
I have reached the conclusion that I do not believe that it is in [N’s] best interest for a new family therapist to become involved with [N]. I am writing to tell you this and to give you my reasoning as to why I don’t think it is fair for [N] to have to now change family therapists. I also want to give you an alternate proposition as a way forward, as I will set out hereunder, and I would ask you to carefully consider that alternate proposal.
Next paragraph:
I think that to force [N] to now change family therapists, having regard to the lengthy history of the court case between you and [N’s] mother, having regard to the lengthy time that [N] has spent with the current family therapist, and having regard to all of the interventions that have occurred with [N] as a result of those court proceedings, such as interviews and assessments, including one with me, would now amount to “systems abuse” of this child.
He then says:
You might recall that I indeed expressed that concern to Johnston J when I appeared before him on 26 March 2014.
And then at page 4 of Mr Holmes’ letter, at the top, he says as follows:
In my view, then, having regard to that history, to now change family therapist for [N] at this particular time, noting the continued stress that [N] still has and noting the continued litigation that persists between you and [N’s] mother, I am of the view that [N’s] position in all of this is the most important thing, and her apparent reluctance to change therapists, as conveyed to me by [N], must be respected. The relationship between [N] and [Dr D] has now developed to a stage where [N] is comfortable in that family therapy with [Dr D], and I think to change that course at this time would be abusive to [N]. As such, I cannot agree to any change in family therapy.
And then the second part of the alternate proposal is put as what Mr Holmes puts under a heading Proposal/Offer to You:
What I would like to now suggest to you is the opportunity to reconsider your opposition to [Dr D], and I would like you to participate in family therapy with [Dr D]. That may at first sound silly but I see no other way for you to progress in your relationship with [N], for the moment anyway. Please think carefully about that. If you will agree to that, I will then contact [Dr D] and invite her to see you as part of this process. I appreciate that in the past you have not wanted to agree to [Dr D] but I would ask you to reflect upon everything, particularly from [N’s] perspective.

Anyhow, the father has taken great exception to that. Instead of accepting the suggestion which the ICL has made that the father reconsider and try and find a way to join in the process with Dr D, the father’s response to this has been critical of Mr Holmes as simply not compliant with the order that I made on 26 March 2014. I do not see it as a breach of the order.
Firstly, it was a notation, and the notation, as I indicated, was that the ICL would explore the possibility of the parents being able to engage a family therapist to replace Dr D. I do not have Mr Holmes immediately before me to raise this because I had already excused him on the basis that he had provided written submissions about these matters. But the first thing which, as the ICL for N, Mr Holmes has done was to speak with N about that matter.
One would have thought in the circumstances of this very complex litigation, in circumstances where N has been engaged now over a long time with Dr D as her therapist, in circumstances where a number of different persons have been speaking to N in various capacities including two ICL’s, one could hardly say that it was unreasonable for the child’s own solicitor to speak with the child about this matter.
That, really, takes us to the second of the father’s concerns. This is that Mr Holmes spoke to N without the father consenting to this or Mr Holmes advising him, I think, prior to very recently that he had spoken to N. The father described this as, and I quote him, “total systems abuse.” Yet what I struggle to understand about this is that Mr Holmes was appointed in this capacity to be ICL to represent independently the child’s interest. And in my long experience of hearing matters in which independent lawyers have been appointed for children, if a child has reached an age where the child was able to communicate with that solicitor, and the solicitor thought there was a matter which was important for the solicitor to speak directly with the child about, then the solicitor would do so.
A part of the father’s concern seems to have been that Mr Holmes spoke to the child’s mother and did not speak to him. But the reality about this is that Mr Holmes would have had to speak to the child’s mother because the child lives primarily with her mother. So for Mr Holmes to be able to have an arrangement under which he could speak with his client, namely N, it would be necessary for him to get in touch with the child’s mother.
Another part of the father’s concerns is linked to that one. This is that Mr Holmes, as ICL, did not copy the father into correspondence between his office and the office of the mother’s solicitors. I have asked some questions of Ms Camilleri, as the mother’s solicitor, about whether there has been any correspondence between her and the ICL. She has indicated that there has not been any correspondence. I note that Ms Camilleri is an officer of the Court and I do not doubt her honesty in answering this. She said that she has been very reluctant to engage in any correspondence other than the bare necessity because of the very considerable legal costs which her client has sustained in these proceedings to date.
So that part of the father’s concerns seem to me to be purely speculation, there not being any substance for his concerns in that regard. The only aspect of it is, as I have said, that as a practical measure Mr Holmes would have had to somehow contact N’s mother in order to make the arrangement for him to be able to speak to the child about relevant matters, including this question of the child’s ongoing therapy.
The father makes a general complaint that Mr Holmes is not acting impartially. Perhaps that is a reflection of the father’s reaction to the letter from Mr Holmes and the manner in which the father viewed that namely as Mr Holmes not complying with the court’s order.
And the other matter that the father complains about is that the ICL did not obtain a copy of all of the father’s affidavits. That is not a matter which, at this point of the proceedings, in my view, it would be necessary for the ICL to do. His focus has been on endeavouring to assist the family and the Court to see whether it would be appropriate for there to be some different arrangement for therapy. Having done that, as he has indicated in his very detailed letter of explanation to the father, he has determined in accordance with his responsibility as ICL not to do so.
Unfortunately, perhaps as a reflection of the father’s frustration that a different therapist not be appointed for N, the father appears to have formed the view that Mr Holmes is falling down on his responsibility as being ICL and therefore he ought to be replaced.
As I have indicated, Mr Holmes has prepared some written submissions. Mr Holmes submits that the father either does not know or does not appreciate or understand the role of an ICL and the specific duties and obligations as outlined in s 68LA of the Family Law Act 1975 (Cth) (“the Act”).
Mr Holmes draws attention to the fact that this is the second time that the father has applied to have a different ICL act in the matter. He says that initially the father was successful in persuading me that it would not be sensible for Ms Mary Alex to resume as ICL in circumstances where the father apparently took exception to this. And in those circumstances I took a practical approach and made the orders in accordance with what the father was asking me to do, namely, not to have a situation where Ms Mary Alex would be continuing to act for the children, and, instead, appointing a new ICL.
Mr Holmes refers to the essence of the father’s complaint being that he seems to have a perception that Mr Holmes is biased against him because Mr Holmes has not supported the appointment of a new family therapist. Mr Holmes refers in his submissions to the decision in W & M and Anor [2006] FamCA 512, 28 March 2006, where the Court said:
It is clear that the Court has the power to remove a child representative... That power is to be exercised in accordance with the proper appreciation of the role of the child representative and, of course, the evidence.
Reference was made to a passage by Chisholm J in the case of T & L (2000) FLC 93-056 as follows (at page 87,915):
While a child’s representative should be removed if there are proper reasons for doing so, it would be quite wrong for a court to remove a child’s representative merely because a litigant has taken the view that the child’s representative is acting contrary to that litigant's position, or (from that litigant's point of view) contrary to the child's best interests.
And then Mr Holmes went on to say there are a number of very good reasons why, in his opinion the Court should be slow to discharge a child representative on the basis of largely unsubstantiated complaints of one of the parties. He said that these include the best interests of the children. The Court should treat allegations of lack of impartiality with caution. To do otherwise would leave every separate representative in the perilous position of facing an application that he or she be discharged because of unfounded allegations or perceptions made by one or other of the parties.
Mr Holmes goes on to say that the Court would note that N has now been interviewed by not one but two ICL’s.
He goes on to point out the possibility or potential for systems abuse of the child with a number of repeated interventions by various people. He says that must be weighed heavily upon any decision about the father’s application.
Mr Holmes refers to his reasons in his letter to Mr Haykal of 10 April, which I have just referred to and says that the critical question is whether the independent child lawyer is likely to carry out his or her task properly.
Mr Holmes referred again to T & L as follows (at page 87,915):
… it might well be appropriate to remove a child’s representative where the evidence showed that he or she had deliberately misled the court or behaved in unethical or unprofessional ways. It might also be appropriate to remove a child’s representative where circumstances arose giving rise to reasonable apprehension that the child representative would not deal with the matter impartially.
It is appropriate to note in this connection that it is frequently part of the child’s representative’s role to advance propositions which will be seen by one party as contrary to that party's interests and/or contrary to the child’s interests. Differences of views are of course inevitable in litigation.
I agree with the child representative’s submission that it is important to avoid a situation in which the child representative “is a captive of the most vocal, litigious or dissatisfied parent or party”.
Mr Holmes goes on to say that as ICL he has not unreasonably elected to adhere to the recommendations of Dr D. He says that the father fails to understand that by adopting that position he is discharging his responsibilities under the Act. He might be right or he might be wrong, in adopting that position. But that is a matter ultimately for judicial determination and it does not amount to a reasonable apprehension of bias.
And he concludes by making the observation that the fact that the father now seeks to attack Dr D professionally is evidence of the high conflict that now pervades this case.
Having looked carefully at the various complaints made by the father, as I have referred to them, it is true that we have not arrived at a position where there is a different therapist appointed for the child. But as I have endeavoured to indicate, what Mr Holmes was required to do was to explore the possibility of the parents being able to engage a family therapist to replace Dr D. It did not mean that he had to find somebody and have them ready to undertake that task. It meant that he had to explore the possibility. He set out, as I say, in his letter in a very detailed way why he formed the view after speaking with the child that such a course would not be consistent with the child’s best interests.
I indicated on a previous occasion that I would accept that view. In my view, in no way has Mr Holmes’ dealing with that aspect of the matter been an abrogation, conflict or somehow falling short, of his duty as ICL for N.
So far as the other complaints which the father makes, in my view, those, even when aggregated, would not arrive anywhere near the standard which would be required to establish a case of a reasonable apprehension that Mr Holmes was acting in some biased or inappropriate way.
In my view, there is no merit in the father’s application and it is to be dismissed.
I should say that in giving these reasons, I omitted to say that the mother’s solicitor supported the submissions made by the ICL and opposed the father’s application for discharge of Mr Holmes.

Stay of Order for Family Report

In relation to the father’s application for stay of the order for preparation of a family report, which order I made on 11 June 2014, the principles upon which the Court is to determine a stay of parenting orders were set out as long ago as in the case of Clemett & Clemett (1981) FLC 91-013. The fundamental principle is the best interests of the child.
It was submitted by the ICL that it would not be in N’s best interests to delay the preparation of the family report. To do so would be to simply stall the process and leave the child in a situation which I infer was suggested would be a continuing situation of having to live her life with an uncertain outcome of the continuing litigation between her parents, and the uncertainties involved in that would not be in her best interests. These submissions were supported on behalf of the mother.
I must say that I am not persuaded to the course proposed by the child’s father. I accept the submissions of the ICL and on behalf of the mother that it would not be in the child’s interest to stay the family report orders, and that it would be in the child’s interests for that process to be able to continue.
I note the father has submitted that this would be very unfair because that process could then involve an interview of N in circumstances where she has not had any time with him since late last year. That might well turn out to be the case. But I am going to leave the process of reporting to the manager of Child Dispute Services. I am not persuaded that the reporting process will be injurious to the child, assuming that the process might well commence prior to the time when the father’s appeal against the order contemplated would in fact occur.
A possibility might be that the appeal might be rendered nugatory. But in my view, in the circumstances of this highly dysfunctional family, in circumstances where on the evidence, the child’s therapist has been saying that this child is in a situation of considerable anxiety, in circumstances where the Federal Magistrates Court ordered a process of family therapy and where that process has not been able to have been undertaken, in my view the consideration of the best interests of the child override the possibility that, depending on the timing, the appeal might be rendered nugatory.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 25 July 2014.

Associate:

Date: 29 February 2016