James and Neat and Ors

[2007] FamCA 1301

FAMILY COURT OF AUSTRALIA

JAMES & NEAT AND ORS [2007] FamCA 1301

FAMILY LAW – CHILDREN – With whom a child lives with – With whom a child spends time – Relocation

Family Law Act 1975 (Cth)

APPLICANT: Ms James

1^ST RESPONDENT: Mr Neat

2^ND RESPONDENT: Ms Stitch

3^RD RESPONDENT: Mrs D

FILE NUMBER: BRC 4448 of 2007

DATE DELIVERED: 26 October 2007

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 25 October 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: The Applicant Maternal Grandmother appeared on her own behalf

COUNSEL FOR THE 1^ST AND 3^RD  RESPONDENTS: Mr Lloyd

SOLICITOR FOR THE 1^ST AND 3^RD  RESPONDENTS: Irene E Pickel Solicitor

COUNSEL FOR THE 2^ND RESPONDENT: Mr Rennick

SOLICITOR FOR THE 2^ND RESPONDENT: Margaret Lawrence & Associates

ORDERS

1. The orders made on 10 February 2005 and the Orders made on 1 December 2005 being matter number (P)BRM3577/2005 made in the Federal Magistrates Court in Brisbane be and are hereby discharged.

2. The child E (“[the child]”) born … March 2004 live with the father.

3. The father forthwith be at liberty to relocate with the child to the Southern Highlands area of New South Wales.

4. The father have sole parental responsibility for the child.

5. The mother/maternal grandmother have responsibility for the day to day care of the child when she is in their care.

6. The mother/maternal grandmother spend time and communicate with the child as agreed between the father and the mother/maternal grandmother but failing agreement then the following shall apply:

   (a)for the first half of all New South Wales school holiday periods for terms 1, 2 and 3;

   (b)for two (2) weeks of the December/January New South Wales school holidays commencing at the advised arrival time according to available flights and schedules but no later than 5pm on 26 December and concluding on 9 January half an hour before the scheduled departure flight but no later than 5pm;

   (c)the maternal grandmother communicate with the child via telephone at times agreed between the father and the maternal grandmother with the maternal grandmother initiating such calls.

7. When the child is spending time with the mother/maternal grandmother:

   (a)the mother/maternal grandmother be restrained from smoking in the presence of the child;

   (b)the mother/maternal grandmother be restrained from providing foods containing dairy products or other lactose to the child;

   (c)the mother/maternal grandmother be restrained from injecting, consuming or otherwise ingesting non-prescriptive, non-therapeutic drugs when the child is in their respective or joint care;

   (d)the mother/maternal grandmother provide to the father details in writing of all other residents in the home when the child is in the care of the mother/maternal grandmother;

   (e)the mother/maternal grandmother make the child available to receive phone calls from the father each evening at 6pm when the child is in their respective or joint care;

   (f)The mother/maternal grandmother be restrained from providing to the child either orally or anally any non-prescriptive, prescriptive, non-therapeutic or therapeutic drugs;

   (g)The maternal grandmother be and is hereby restrained from giving enemas to the child unless specifically advised to do so by a medical practitioner in writing.

8. For the purpose of facilitating Orders 6 and 7 above in the absence of any written agreement between the parties to the contrary the following is to apply:

   (a)The father shall be responsible for the purchase of return air tickets for the child to and from Maroochydore Airport for the purpose of the child spending time with the mother/maternal grandmother;

   (b)The father shall provide to the mother/maternal grandmother all travel times, dates and details 14 days prior to the commencement of the time the child is to spend with the mother/maternal grandmother;

   (c)The father or other adult as nominated by the father is to deliver the child to Maroochydore Airport at the commencement of the time the child is to spend with the mother/maternal grandmother with the mother/maternal grandmother to collect the child and return her to Maroochydore Airport to the father or other adult as nominated by the father at least one (1) hour prior to the notified departure time at the conclusion of the time spent with the child.

   (d)The first half of the New South Wales school holiday period is deemed to commence on the first day after the last day of school.

9. The mother, maternal grandmother and the father are to at all times keep each other informed in writing of their residential address and mobile and landline telephone numbers.

10. The mother/maternal grandmother are to notify the father of any medical emergency and otherwise keep the father informed of any medical conditions, significant health issues or illness suffered by the child while the child is with either of them as soon as possible of any such medical attendance or emergency involving the child.

11. The father is to notify the mother/maternal grandmother of any medical emergency and otherwise keep the mother/maternal grandmother informed of any medical conditions, significant health issues or illness suffered by the child while the child is in the father’s care as soon as possible of any such medical attendance or emergency involving the child.

12. The mother/maternal grandmother shall communicate by telephone with the child at 3pm on Christmas Day, the child’s birthday and other special occasions with either the mother or the maternal grandmother initiating such call to the father’s landline telephone number.  In the event the father does not have access to a landline telephone then the father is to initiate the telephone call to either the mother or maternal grandmother on behalf of the child at 3pm on Christmas Day.

13. The applicant maternal grandmother pay the first and third respondents’ costs fixed at $15,000.00 within two (2) months.

14. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 4448 of 2007

MS JAMES  

Applicant

And

MR NEAT and MS STITCH and MRS D

Respondents

REASONS FOR JUDGMENT

1. There are four applications before me in relation to a child E who was born in March 2004.  She thus is aged about 3 and a half years of age.  The applicant is Ms James, who is the maternal grandmother of the child.  The respondents are three in number, they being: Ms Stitch, who is the mother of the child; Mr Neat who is the father; and Mrs D who is the paternal grandmother.  Each are now seeking that the child reside or live with them and that various orders be made for spending time with the other parties.

2. This is rather a peculiar case in that the parties really did not live together for any length of time.  I think the maximum about 12 months from 2003 until early 2004. 

3. I will refer to the parties as mother, grandmother, et cetera. The mother was at that time the mother of six children at that time, before the child E.  She now is aged 33 years of age and is the mother of 9 children altogether.  She will be 34 next week.  She is now a grandmother since her daughter S, who no longer resides with her but is making her own life, has recently given birth to a child.  Consequently, as I said, she is now a grandmother at the age of 33, almost 34.  The birth of the child E was not, for the mother, a particularly happy event in that she was unwell.  She had problems with the birth and, as she says, was quite ill.  She haemorrhaged and necessitated some degree of care and attention which fell from her for a period of only four days, which quite surprises me, if she is ill as she says she was, that she was only in hospital for four days.  It may have been that her evidence did not come forward properly in that she may have been ill for further but I thought she said she was in hospital for four days.  She was discharged and she resumed looking after her children who had been looked after by her mother, Ms James, as well as a brother for a period. 

4. Prior to the confinement with the child, she had been living with the six children in a tent at a house just around the corner from the applicant maternal grandmother's residence.  The maternal grandmother, notwithstanding that her husband is a contractor employed with various companies in the south east area of Queensland and is earning something like $3000 per week, was living in a housing commission house.  That house consisted, correct me if I am wrong, Ms James, of three bedrooms and that at the time that the mother was residing in a tent in the backyard of a friend's house.  She had only herself, her husband, and one of her elder sons living in the premises.  No evidence was given to me why proper arrangements could not have been made either for the mother and the children to reside in the premises or for her to pitch her tent in the backyard of the maternal grandmother's house.  That is a matter of historical significance, I would have thought. 

5. The child was given into the possession of the maternal grandmother by the mother and the child stayed in the maternal grandmother's possession for a period of approximately 11 months.  Thereafter she came into the possession of the father and has generally, save for a period from December 2006 until about March 2007, lived with the father on the Sunshine Coast where he was attempting to seek work and subsequently in the Southern Highlands area of New South Wales where his mother and her husband, his stepfather, reside and still do reside.   He indicates to us in evidence that he allowed the mother, as he thought, to take possession of the child for that period from December until March but as it subsequently transpires because, as was said, a misinterpretation of an order made in 2005 that the mother was of the opinion she could not have the child living overnight, and as a result thereof the child went into the possession once again, of the maternal grandmother and remained there for a period until about 6 March 2007 when, as a result of the actions of the father and his mother, the paternal grandmother, the child came back into the possession of the father and has remained there with him since then save for periods of spending time with which have been generally complied with quite strictly and strongly.

6. The father left with the child and went to the Southern Highlands area of New South Wales and subsequently an order was made whereby he was required to relocate back to the Sunshine Coast to remain within 75 kilometres of the Sunshine Coast area.  He has done that and has resided since that time in a caravan in a caravan park.  He feels socially isolated in that area.  He endeavoured to seek work when he was there prior to that time, generally unsuccessfully and this is something which looms large in his application, not only for the child to live with him but also for his relocation to the Southern Highlands area.

7. May I say in passing that the paternal grandmother has also sought an order that the child live with her but a joint order whereby the child lives with her and her son, the father. 

8. I have already commented to counsel and to the maternal grandmother that I thought that this case was run very, very properly and very economically, and notwithstanding it was set down for two days it completed at about 3, 3.30 yesterday afternoon and I compliment all the parties in cross-examining with a purpose and cross-examination on relevant matters and not on who told what to each other type of cross-examination which is anathema to me.  They got to the crux of the matter and I am thankful for all the parties in the endeavour that they have done in putting cross-examination correctly in context.  It does not make the case any easier.

9. I am fortunate in having put before me a family report prepared by a Mr F.  It is dated 27 September 2007 and he indicates that he had interviews with those people particularised on the first page under paragraph 3(1) of his report on 12 September 2007.  Up until that time and even in his report, he was of the view that the mother was not seeking an order that the child live with her but that she supported most strongly the grandmother's claim, the applicant in these proceedings, that the child live with the grandmother.  I must also say in passing that since the six children to whom I have referred, the mother has had the child E and has had two other children to a gentleman by the name of Mr M who I understand lives in North Queensland.  These children are very young.  I think one is baby of only some months; they are two boys; and I think the other one is around about two years of age.

10. However, shortly after the date of the interview, she filed an application in this Court for an order that the child live with her and that there be various subsequent machinery type provisions thereafter.  I did ask her counsel Rennick as to what had changed since 12 September that caused her to institute proceedings which she had not sought up until that time and he indicated, "Well, she had filed an application," and that is undisputable.  She did.  She filed an application about 10 days subsequent to the interviews.  However, that is something which I take into consideration and in particular I take into consideration that up until that time she did not see her claim for the child to live with her with any confidence, perhaps I may say and I cannot see anything that is changed since 12 September.  I do know or point out, as she pointed out most strongly – she is a very intense young woman.  I thought perhaps somewhat highly strung.  She indicated that up until 2004 she was, I do not think she used this word but I will, "a bit of a mess".  She had problems with drugs.  She had problems, to not as great an extent by any means, with some alcohol.

11. She was finding it difficult to get accommodation, which said was unjustly refused to her because she received a black mark from the Real Estate Institute, which she subsequently took up with them and such black mark was removed.  And the direct result thereof: she has obtained a four bedroom Housing Commission home on the Sunshine Coast; that she has now changed the whole of her view on life; that she is now a solid mother; that she is able to adequately maintain the children; that she is able to save, albeit very little but she is still able to save; that the children are doing well at school, notwithstanding there are some concerns set out in the Department of Children's Safety file which I have read; and generally she is very happy with her lot; she does not live far from her mother, the applicant maternal grandmother, and has a close, warm and loving relationship with her.  She says also: her children, numerous though they may be, get on very well together -  I would assume other than normal spats amongst them; that she enjoys looking after her children.  She does not go out very much, if at all, during the week and in other words the whole of her life is directed towards the proper and adequate upbringing of her children. She indicates that there is a close relationship between herself and the maternal grandmother and that the children see quite a lot of her.  That is, of the maternal grandmother.  Also, of course, she says because of the spending time of the child E with the maternal grandmother and herself, that the children have a close relationship with E.

12. As I said, I commend the report writer, Mr F.  I think his report is quite superb.  He has ticked every box, in my opinion, that is necessary for not only a family consultant to look at but also Judges to look at in difficult cases of this nature. 

13. There is no such thing as the preferred role of the mother.  There is no such thing as the preferred role of the paternal grandmother, nor of the father, nor of the maternal grandmother.  I am directed by our political masters to look at various things which are set out in the division dealing with the question of children living with one or both parents. I note, of course, the emphasis that has been placed upon joint parental responsibility and joint living with each other. I also note the Act has been amended to emphasise the role of the grandparents in looking after children.  May I say in passing that I am of the opinion that the Court has always been aware of a claim of the grandparents towards the welfare of the children and it is not something new, notwithstanding our political masters tend to think so.  But I take those matters into consideration.  I take it into consideration the matters which have been set out in the various sections under that part of the Act and in particular I consider in a case such as this that where there is the presumption of joint living, if I may put it that was, everything must pale into insignificance when you take into consideration the welfare of the child.  Everything is subservient to that and I must look at what is in the best interests of the child and I am of the opinion that having taken into consideration those matters which I will touch upon at a later stage, that the presumption is rebutted.

14. I note, of course, that I have to look at various matters, particularly those set out in section 60CC and I do not have to go through each of those subsections seriatim but I will emphasise the matters which I consider are important in my coming to the conclusion which I will.  I once again refer to the family report.  In particular I refer to those matters which arise from paragraph "Evaluation"; that is paragraph 86 on.

15. This where I say he has pretty well touched up on every point that is necessary for me to touch upon:

    a)Will the child's welfare be advanced by being in the possession of all of them or either of them?  I am quite satisfied that [the maternal grandmother] has done as much as she possibly can for the welfare of the child.  My only concern here in so far as that is her relation. I do feel as though that she has put herself in a position of looking upon herself as the mother of the child.  There have been considerable times when the mother, notwithstanding the fact she herself says that she is available for looking after the child, has not had the opportunity.  As he points out in his report and I think this is right, the mother has had no more overnight contact.  The child has not spent time with the mother overnight for more than about four or five nights since her birth.  She has been with the maternal grandmother, who has done the best job she possibly can, and that is for that first 11 months and for a period from December until March '07, notwithstanding the fact that the father was of the view that the child was going to be with the mother.  I must say that I doubt that the interpretation of both the mother and the maternal grandmother as to the strictures upon the mother not having overnight contact.  However that is a view which they have taken.  I do not consider it is a correct view but I do not in any way denigrate them for doing that.  The child's welfare was looked after.

    b)For the greater part of her life she has been in the possession of her father and it could not be suggested saving one or two particulars, that the father has not done an adequate job in the parenting of this child.  Both the mother and the maternal grandmother, the applicant, Ms [James], are afeard that the health of [the child] is not adequately looked after.  The maternal grandmother has put before me the records, if I may put it that way, of Dr [Y], his notes, and I take into consideration that she is an asthmatic, that is [the child] is an asthmatic, and she may have some bronchial conditions.  Those matters I feel have been adequately looked after by [the maternal grandmother] and I have no hesitation in saying that they will be looked after by the father with the assistance, if necessary, of his mother.  [The mother] has said quite clearly that in her opinion she has no worries for the welfare of [the child] whilst the paternal grandmother is around, in other words whilst the father is living with her.  She does have concerns that if, in fact, the father, as is his wish, moves out into a house of his own, that his caring for the child will not be of an adequate standard.  I do not at this stage have sufficient concerns in that whatsoever.  I think he will advance the welfare of that child.

1. I will, at this stage not look at the benefit of having a meaningful relationship with both the child's parents because I think that that will loom large in the question of relocation.  May I say, in so far as relocation from the Sunshine Coast to the Southern Highlands in New South Wales is concerned, that this is a crucial part of the application for the child's living with one the various protagonists in this case.  It is not to be decided separately. It is to be decided as part and parcel as one of the facets of one of the grounds for my coming to a decision as to with whom the child should live. 

2. The parties do not get on. I am surprised, however, from Mr F's report that they do endeavour to do their best when the child's welfare is proposed and I complement them upon that.  Otherwise there is very little trust between any of the parties and that is tragic.  I have already mentioned in argument to the maternal grandmother that it is very difficult for a total stranger as myself to come along and to determine a matter upon evidence which is put before me where parties who, one would hope are adult and responsible, are unable to agree and, as I said, a stranger has to come and decide the matter.  I have to rely upon the evidence which is put before me and I emphasise that in fact Mr F's report was in no way attacked.  He was not required for cross-examination and I have before me his unchallenged views and his unchallenged recommendations.  I do not believe there to be any physical or psychological harm if the child was in any of the protagonists' care.

3. The child has a close relationship with the maternal grandmother.  This is brought about, as Mr F opines, because of the initial period that the child was with the maternal grandmother, Ms James, for about 11 months.  Equally he is satisfied that there is a warm and loving relationship between the child and her father and, whilst he does not emphasise it, that the child gets on well with the paternal grandmother, Mrs D.

4. There is some difficulty in the willingness and the ability of each of the children's parents to facilitate and encourage a close and continuing relationship between the child and the other parent because if the father is successful in his relocation application, the tyranny of distance and the expense involved in continuing the close and continuing relationship, particularly between the maternal grandmother and the mother and the child and the father will make it exceptionally difficult, notwithstanding the fact the Southern Highlands area is some one and a quarter hours from Sydney by road, there is the problem of going from the Southern Highlands area to Sydney by plane to I assume Maroochydore airport and back again.  If, in fact, the father is successful, I would think that there could be no suggestion by any of the parties, notwithstanding Mr F's suggestion one weekend in eight, that there could be any form of comparatively short periods of living with the other party.  Although as I did say and I have not looked into it closely, I think about one weekend in eight comes along at every school holiday and consequently that is a matter which I will be determining at a later stage.

5. This is a hard run case because I think all of the parties in their own way are endeavouring to do the best by the child.  I think, the attitude to the child is good on all sides.  Any question of family violence, there is none involving the child.  There is no evidence of that at all and it may be that there is alleged by the mother that there was violence between herself and the father.  I do not think that it is of such a standard, if at all, that would concern me in these circumstances.  There is no family violence order, according to my memory. 

6. I consider that each of the parents has fulfilled his or her responsibilities to the parent.  It may be some people could be critical of the mother in that in effect she placed the responsibility for the first few months of the child's life in the hands of her mother.  I do not believe that that is the case.  I think she was in herself struggling at that time with six children; that she was finding difficulty in getting accommodation.  She had been living in a tent and only shortly before she was confined with the child, had moved into a holiday apartment.  It would have been, I would have thought, difficult for any person, let alone a youngish woman who would have been some 28 perhaps at the time - 27, 28, to have that enormous responsibility upon herself and a brand new child.  Perhaps someone could criticise her.  I do not.  I think that she endeavoured to do the best she could by her child but perhaps she went a little bit too far and allowed the maternal grandmother to take over and put herself in the position of mother.  That is the only minimal criticism I have of her in relation to her responsibilities.

7. Decisions have been made by all of the parties in relation to the child and I think generally they are proper.  What then is the case that I have to consider, which I will take into consideration as well in relation to relocation.  I must find what the competing proposals are.  The father says that he is socially isolated in the Sunshine Coast, that he cannot get jobs in his trade, that he has an extended family; notwithstanding the fact he smashed up his brother some years ago they appear to now have a close relationship.  A twin brother too.  He has an offer of a job already in the Southern Highlands area.  He is more confident that he will be able to find gainful employment and hope thereby to increase the opportunities of the child in going to good schools.  The paternal grandmother and her husband, that is his mother and her husband, his stepfather, appear to be reasonably comfortable.  The father’s stepfather, Mr D, is a manager but having read his affidavit I am sure that he is just a little bit more than a manager.  He or his family have been involved in a considerable number of businesses in the Highlands of New South Wales which they sold out to another company some years ago and already their daughter, that is Mr and Mrs D's daughter, L, who is aged 14 or thereabouts, is attending R school in Sydney as a weekly boarder and she has received a scholarship in relation to music.  I am able to say, which was confirmed by Mrs D, that attendance at R school is not an inexpensive exercise.  It is one of the better known schools in the Sydney area from my own information but I think Mrs D accepted when I put to her it is about $20,000 a year and that would, of course, only be for a weekly boarder.  It is very expensive. It is her view and desire, that is Mrs D's view and desire, that the child E attend, G Primary School and subsequently go to R school, another expensive exercise and it appears as though Mrs D considers that R school, as she said, is worth every penny she spends and that she intends to assist the father in sending the child to that school.

8. On the other hand the mother says she is the mother, that she has eight children residing in the area.  She has seven with her. That they are the siblings of the child.  That there is a relationship between them and as I have already touched upon, moving to the Southern Highlands area will, of course, because of the tyranny of distance, make it more difficult for the children to relate to each other and they would only be able to do so, I would have thought, for extended periods during the school holidays.  But once again Mr F has ticked the box and at paragraph 102 he says, and I read:

   I am of the overall view that [the father]'s parenting of [the child] will be enhanced if he is to find a greater level of security and emotional support in [the Southern Highlands]. I am not of the view that relocation will present a loss to [the child] in terms of her relationship with her mother and siblings as there is little foundation there.  It would, however, reduce the scope for the child to develop a meaningful relationship with her mother as it would limit the scope for her to spend significant and substantial time with her. 

   Paragraph 103:

   In my view the father and the paternal family demonstrate a capacity to recognise the significance of a relationship between [the child] and [the maternal grandmother] and they would, in my view, support and promote that relationship. 

   I am satisfied that that is the case.  I was particularly impressed with Mrs D and I am sure that she will do everything to ensure that the child's relationship with her mother and with the maternal grandmother is in no way interfered with and she will promote the relationship between the child and her siblings.

9. I am of the view that the competing proposals which I have put forward are such that it would be in the interests of the child and that she be allowed to relocate with her father to the Southern Highlands area.  I recognise that this is not something which will find favour with the mother, nor with the maternal grandmother, but it was a matter I have to determine. I do not believe their proposal would enhance the relationship between the child, her father and the paternal grandmother. 

   ORDERS DELIVERED

   RECORDED: NOT TRANSCRIBED

10. This is unfortunate.  As I have already indicated to Lloyd of counsel who appears on behalf of the father and the paternal grandmother, the third respondent, when he indicated to me he would be seeking an order for costs prior to lunch that I was philosophically opposed to such application until he informed me that an offer had been accepted by the applicant grandmother and that it had in effect been put into force and effect as and by way of a consent order.  No, that is not quite correct.  I should not say that.  But, in fact, it was going to be put into force and effect as a consent order.  He has put before me documents which I have now compendiously referred to as exhibit 5.

    RECORDED:  NOT TRANSCRIBED

11. These offers and counter-offers were made and, as I said, eventually an order was made which was proposed to be put before the Court as and by way of a consent order.  The applicant grandmother indicates that that is correct, that she herself had just recently received the family report upon which I have placed a considerable amount of importance and that she received certain advice from her solicitor who was acting for her at that time.  As a result of that negotiations were entered into and as I have already said on two occasions an order was drafted and an agreement was reached and it was proposed that orders be made by way of consent in accordance with that agreement, which is very similar to what I have already ordered. 

12. The applicant grandmother indicated that on reflection she decided not to proceed and withdrew her consent by way of a letter from her solicitors of 18 October 2007 from Messrs Schultz Toomey & O'Brien who were, as I have said, at that time acting on behalf of the mother, the maternal grandmother and in that letter they indicate that they have subsequent to that letter, no further instructions and withdrew from the proceedings.  I understand Notice Of Ceasing To Act has been filed. 

13. The father and the third respondent, the paternal grandmother, put before me exhibit 4 which is a costs notice which says that the costs incurred and to be incurred up to date were amounting to $57,948.13.  That has been given, as I understand, a copy has been given to the maternal grandmother.  I indicated to Lloyd of counsel that I was not overly impressed with that, that I thought that he would have a better chance of convincing me the costs should be ordered if in fact he put before me the costs in effect thrown away by the withdrawal of the applicant grandmother from the agreement.  He has done so and in a handwritten document which I admit marked exhibit 6, he indicates that the costs are $17,622.

14. I have to also, of course, look at the various things set out in section 117.  Obviously the general thrust of the Act was that each party bear their own costs.  In this case I have to also consider the capability of the person against whom the costs order is sought to be able to pay the costs.  The maternal grandmother had given evidence as I have referred to in my judgment that her husband with whom she lives is in receipt of something like $3000 per week and that she has at least 23 or $27,000  savings in the bank.  Prima facie that would be more than adequate to pay the costs as claimed by the father and the third respondent.  I regret and I make it quite clear that if it had not of been for this agreement I would not have ordered costs because as I have already indicated I thought the grandmother was only doing the best she possibly could by the child.  There was no malice or anything of that nature in it. 

15. Lloyd of counsel has indicated this is an application for costs on a solicitor and own client basis.  To me it does not appear to be but I am not going to quibble with that.

    RECORDED:  NOT TRANSCRIBED

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell

Associate

Date:  7 November 2007