PRESTON & IDRIS

[2012] FamCA 729

FAMILY COURT OF AUSTRALIA

PRESTON & IDRIS [2012] FamCA 729

FAMILY LAW – CHILDREN –with whom the children spend time – where orders provide for the children to live with the mother – where orders provide for the children to spend substantial and significant time with the father on alternate weekends including time in school holidays and special occasions – where there is a meaningful relationship with both parents - where the parties entered into consent orders for equal shared parental responsibility - where the relationship between the parents had been difficult and unrewarding and where both parties find it difficult to communicate with one another –where the parties continue to demonstrate an inability to remain child focussed -  where the uneventful progress of interim orders where the father spent time with the children had significantly improved confidence between the parties – where family therapy is ordered to facilitate continued improvements in communication – where the children expressed a strong desire not to spend any time with the father– where the children’s expressed wishes were found to be representative of their anxiety to be separated from their mother rather than reflective of their attitudes towards the father – where the mother and children were concerned the father would remove the children from Australia and take them to Egypt – where the parties entered into consent orders preventing the removal of the children from Australia - where an apprehended violence order was taken out for the protection of the mother and children from the father at the time of separation- where allegations of child abuse as against the father were not pursued- where there has been no further incident of family violence – where the mother currently provides substantially all of the financial support – where the father was unable to work due to an injury to his hand -  where the parties have an Egyptian cultural background -where the children have a strong relationship with the maternal family

Family Law Act 1975 (Cth) s 60CC and s 65DAA

APPLICANT: Mr Preston

RESPONDENT: Ms Idris

INDEPENDENT CHILDREN’S LAWYER: Watts McRay Lawyers

FILE NUMBER: (P)PAC 1032 of 2009

DATE DELIVERED: 24 August 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Cleary J

HEARING DATE: 28,29,30 & 31 May and 1 June 2012

REPRESENTATION

APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Ms Friedlander

SOLICITOR FOR THE RESPONDENT: Not applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr O’Brien

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Watts McRay Lawyers

Orders

1. That all prior parenting orders are discharged.

By Consent:

1. That the parents have equal shared parental responsibility for the children A born … March 2002 and J born … November 2003 (“the children”).

2. That the children spend each Mother’s Day with the Mother and each Father’s Day with the Father and if either day falls while the children are residing with the other parent, that parent is to have the children ready for collection at

   
   

   9.00 am and the other parent is to return the children at 6.00 pm on that day.

3. That while the children are living with one parent during school term or school holidays:

   (a)Each party is to immediately notify the other if either of the children is seriously ill or admitted to hospital at such time as the children are living with that parent and to advise the other of the names and addresses of the children’s treating doctors and dentists;

   (b)The parent with whom the children are living:

   (i)is to be responsible for day to day decisions concerning the care, welfare and development of the children;

   (ii)is to take the children to their extracurricular activities or sporting activities, or alternatively is to arrange to have them taken to their extracurricular activities or sporting engagements, as agreed between the parties;  and

   (c)Each party is to refer to the children by their legal names, being A Preston and J Preston and neither party is to discuss changing the legal names of the children in front of the children, and additionally the legal names of the children are to be used for all school purposes, all medical records and all other official records.

4. If either parent proposes to take the children for a holiday to another place, whether within the State of New South Wales or otherwise within Australia:

   (a)that parent provide to the other parent not less than 28 days notice of such intention and provide the other parent with an itinerary and in particular include details where the children may be contacted during this time; and

   (b)facilitate and ensure that the children contact the other parent twice per week and ensure that the other parent is able to contact the children during the relevant holiday period in addition to the above.

5. For the purpose of s 61C of the Family Law Act 1975, the following matters are the subject of equal shared parental responsibilities of the parties in respect of the children:

   (a)       current and future education of the children;

   (b)       religious and cultural upbringing;

   (c)       the health of the children;

   (d)       the names of the children; and

   (e)changes to the living arrangements of the children that make it significantly more difficult for the children to spend time with a parent.

6. The Father and the Mother and their servants and/or agents be restrained from removing or attempting to remove or causing or permitting the removal of the children A (born … March 2002) and J (born … November 2003) from all States and Territories of the Commonwealth of Australia.

7. The Commissioner of the Australian Federal Police and the Secretary of the Ministry for Immigration take all steps to give effect to the preceding Order sought by placing the children on the PACE Alert System and/the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and that the said children be maintained on the Watch List until the Court orders otherwise.

8. The parents are restrained from denigrating the other parent or members of the other parent’s family, in the presence or hearing of the children.

it is further ordered:

1. The children shall live with the mother.

2. The children shall spend time with the father as follows:

   (a)       Commencing from Term 4 in 2012:

   (i)during school term; on each alternate weekend from after school Thursday until before school the following Monday morning (extending to Tuesday if the Monday is a Public Holiday or pupil free day).

3. The parents shall spend time with the children during school term holiday periods as follows:

   (a)In even numbered years, the first half with the mother and the second half with the father, commencing in the holiday between the third and fourth terms 2012;

   (b)In odd numbered years, the first half with the father and the second half with the mother, commencing 2013.

4. For the purposes of defining the school holiday periods:

   (a)the holidays commence on the first day following the conclusion of the school term;

   (b)the holidays end on the day prior to the recommencement of the new school term;

   (c)the mid-point day shall be defined as the mid point between the first and last day of the school holidays; and

   (d)in the event that there are two mid-point days, then the mid-point day shall be the first of the two days.

5. The parents shall spend time during Christmas school holiday periods as follows:

   (a)In even numbered years, the first half with the mother, suspended from 6.00 pm Christmas Day until 10.00 am 27 December, which period the children shall spend with the father; and the second half with the father;

   (b)In odd numbered years, the first half with the father, suspended from 6.00 pm Christmas Day until 10.00 am 27 December, which period the children shall spend with the mother; and the second half with the mother.

6. That in any year when Easter falls outside a school term holiday period and only in those circumstances, the children shall spend time with their parents at Easter as follows:

   (i)from 9.00 am Easter Sunday until 6.00 pm Easter Monday with the Father;

   (ii)from 6.00 pm the Thursday before Good Friday until 9.00 am Easter Sunday with the Mother.

Changeovers

1. Where the changeover of the children does not occur at school, changeover shall occur at … McDonalds.

2. For the purposes of changeover during school holiday periods, changeover shall occur at 10.00 am unless otherwise agreed.

3. Each parent may arrange for a third party to assist with changeovers on any occasion when he or she is unable to personally attend.

Telephone calls

1. The Father will provide the children with a pre-paid mobile phone and the Mother will ensure that the children are available to telephone the Father on this telephone at any reasonable time.

2. When the children are living with the Mother, the Father may telephone the children each Tuesday evening between 7.00 pm and 7.30 pm and may speak to each child for a period no longer than 15 minutes.

3. When the children are with the Father, he shall assist and encourage the children to telephone the Mother at the telephone number she nominates on at least one occasion in each period of time.

4. For the purposes of communicating on issues relating to the day to day parenting of the children, the parties shall write in a communication book which will travel with the children on changeover.  The communication book is not to be used for criticism or denigration of the other party.  If one party uses the communication book for criticism or denigration of the other party, the other party is at liberty to discontinue the use of the communication book.

5. That the parties shall within 14 days of the date of these orders contact the children’s school and provide all consents necessary such that all written communications relating to the children shall be made available to both parties.

6. The parties are to use Dr T as the children’s general practitioner.  The father is not to take the children to another general practitioner unless in an emergency.

7. The parties will do all things necessary to make an appointment to attend family therapy with the children as soon as possible and in the event the parties are unable to agree on a suitable family therapist they shall ask for and accept the recommendation of Dr T.

8. Each parent may attend any school or extra curricular event to which parents are invited and shall advise the other parent of the intention to do so, in advance of the event.

9. Each parent is to maintain a wardrobe of clothing for the children at the home of that parent, such clothing is to include school uniforms, school shoes, sports uniforms, sports shoes and any equipment, and when that clothing is worn or taken by the children to the home of the other parent, then the parent is to ensure that the clothing is washed and ironed and returned to the other parent as soon as possible.

10. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Preston & Idris  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: (P)PAC1032 of 2009

Mr Preston

Applicant

And

Ms Idris

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction  

1. This is a dispute over the parenting arrangements for two children, A aged 10 and J aged eight.

2. The father, Mr Preston, is the applicant.  He is 50 years of age.  The mother, Ms Idris is the respondent.  She is 44 years of age.

3. The parties were married in 1999, separated early in 2009 and have been divorced since October 2010.

4. The matter proceeded over five days of hearing, the father representing himself.

History

1. Both parents were born in Egypt.  They met in that country in March 1999 and married a few months later.

2. The father had been living in Australia since 1990.  After their wedding the mother travelled to Australia to join her husband and the parties have lived in Australia since.

3. The children were born early in 2002 and late in 2003.  The mother says that she and the father had not known each other very well before they married, and that after the children were born her experience of the marriage was increasingly unhappy.

4. The father perceived the mother as homesick for Egypt and took all the steps he could to engage his wife in interesting activities and business opportunities.

5. When J was less than two years old, the father became unable to work due to injuries to his hand.  The mother returned to work in the parties’ business and the father cared for J.  The child A attended pre-school five days per week.

6. The relationship between the parties deteriorated.  The mother disapproved of the father’s use of corporal punishment on the children and regarded him as authoritarian.  The father thought the mother unduly critical both of himself and life in Australia.

7. In late 2008 there was a prolonged argument in the presence of the children.  The mother formed the view that the father was harshly punishing the children as a means of getting back at her.

8. On 3 January 2009 there was a final argument which the mother asserts became physical, the father kicking her while she was in bed with A.  The police were called and a provisional ex parte Apprehended Violence Order (AVO) issued the next day.  The father denies such assault.

9. On 6 January 2009 the mother went with the children to the police to report a further incident from the previous day.  She says that during that journey to the police station A told her of inappropriate touching by the father.  The mother had been unhappy for some time about the father sleeping in the children’s room, often in A’s bed, after marital arguments.

10. The mother reported the allegation and A was referred to the New South Wales, Department of Community Services, Joint Investigation. Response Team (JIRT). No further action eventuated.  The father has at all times strenuously denied any wrong doing.  The mother has not sought to pursue those allegations further.

11. After the AVO issued the father left the family home.  This proved to be a final separation.

12. Hostility between the parties did not diminish after separation, it escalated.  Over the following three years there were many Court events and orders.

13. Unsupervised time between the children and their father began in November 2009, progressing to overnight visits in May 2010. 

14. In May 2010 A experienced chest pain and breathing difficulties.  The mother took her to the hospital.  The admission summary includes this statement, having excluded physical illness:

    The impression is the symptoms are brought on by some form of psychological stress and not due to organic cause.  It is also the first time since the separation (1.5 years) that [A] has stayed with her father.[1]

    [1]  Affidavit of Mother sworn 17 July 2012, Annexure ‘B’

15. Later in that year A was referred to the Children’s Hospital to be treated for anxiety.  The parties used their legal representatives to resolve a dispute over whether treatment was necessary and who should provide it.

16. Unfortunately, the father saw the mental health intervention for A as a ploy by the mother to diminish his relationship with his daughter.  He was dismissive of A’s reported panic attacks

17. When A wrote a note suggestive of self harm the father was so sure that the mother was the author of the note that he hired a handwriting expert.  That it was the child’s writing did not change the father’s view about the mother being the author.

18. I do not consider that the father was unconcerned about his daughter.  Rather his focus was on the wrong person.  Aggrieved by events, he focused on the mother.  What he did not do was ask himself why A was exhibiting signs of stress or writing notes about self harm.  Likewise the mother simply attributed A’s distress to the conduct of the father.

19. There is no doubt the father loves both his children, but in this matter the father lacked empathy for A’s situation.  The child A was caught between her mother’s fear and her father’s anger. Clearly, both children had suffered during the ongoing conflict and the pressure affected A in that way.

20. Time between the children progressed and was much less eventful in 2011 and 2012.

21. To a great extent the situation of the children had improved by the time the matter was heard.  The parents were open to settlement discussions.

22. By the conclusion of the fourth day, the parties were able to agree on equal shared parental responsibility and certain specific issues.  Orders were made by consent on 1 June 2012 to become operable when the matter was fully determined.

Issues for determination

1. The parties were unable to agree on the pattern of living arrangements during term time, on special occasions and to some extent, about holidays.

2. The father submitted on the basis of a strongly held view maintained throughout the proceedings, that a 50/50 parenting arrangement was in the long term interests of the children.[2]  This was defined as alternating on a weekly basis from after school Friday to before school the following Friday.

   [2]  Exhibit ‘17’ Submissions by Father

3. The mother and the Independent Children’s Lawyer came to a common position, namely that the children:

   1.      Live with the mother;  and

   2.      Spend time with the father:

   (i)each fortnight from after school Friday to before school Monday on each alternate weekend; and

   (ii)from after school Thursday until before school Friday in the second week;

   (iii)extending to a fortnightly period from Thursday after school until before school Monday commencing in Term 3, 2013.

   3.      Spend holiday time increasing to equal

The evidence

1. In support of his application, the applicant father filed the following documents:

   (i)     affidavit and annexures of the father sworn and filed 4 May 2012;

   (ii)    affidavit of MG sworn 16 March 2011 filed 22 March 2011;

   (iii)     affidavit of NS sworn 15 May 2012 filed 28 May 2011; 

   (iv)   affidavit of AG sworn 1 September 2010 filed 6 September 2011;

   (v)    affidavit of AG sworn 2 September 2010 filed 6 September 2010;

2. In support of her application, the respondent mother filed the following documents:

   (i)     affidavit of the mother sworn 21 May 2012, filed in Court;

   (ii)    affidavit of SA sworn and filed 30 March 2011;

   (iii)     affidavit of RB sworn 8 October 2010 filed 18 October 2010.

   (iv)   affidavit of RK sworn 29 September 2009 filed 6 October 2009 filed on behalf of the applicant father and respondent mother (both parties).

Applicable law

1. The parents have consented to an order for equal shared parental responsibility. Thus the presumption contained in s 65DAA of the Family Law Act 1975 (Cth) (“the Act”) is activated and the Court must consider whether it would be in the best interests of the child and otherwise reasonably practicable to make an order for the children to spend equal time with each parent.

2. In the event that equal time is not considered to be in the best interests of the children and/or reasonably practicable then the Court must consider whether the children spending substantial and significant time with each of the parents would be in the best interests of the children[3] (s 65DAA(2) of the Act).

   [3] Defined in s 65DAA(3)(a)-(c) of the Act

3. In this matter the father sought equal time on a rotating weekly basis. The mother proposed alternate weekends, plus one overnight stay per fortnight.  The parents agreed on equal holiday time, although the mother suggested allocating progressively more holiday time rather than an immediate equal time arrangement.

1. In determining what is in the child’s best interests the Court must consider the matters set out in s 60CC(2) and (3) of the Act.

Primary Considerations

Section 60CC(2)(a) and (b) – the benefit to the children of having a meaningful relationship with both of their parents and the need to protect the children from physical or psychological harm from being subjected or exposed to abuse or family violence.

1. In this matter by consenting to an order for equal shared parental responsibility, the parents have acknowledged that each of them has a meaningful relationship with both children which should continue. 

2. In future they will equally share all the duties powers responsibilities and authority which by law parents have in relation to children.

3. During school terms the children will spend more time with their mother and she will make most of the day to day decisions about supervision, clothing, meals and activities. 

4. However, for the identified long term issues, both parents must find a way to consult with each other and relevant third parties such as school principals and medical specialists to reach decisions.

5. This will involve patience, restraint and an acknowledgement by each parent of the legitimacy of their respective point of view.

6. The children are 10 and eight years of age.  In a few years their ideas and wishes will also need to be considered in making decisions.  I consider that the parents are ready to move forward in this way which will deliver a great benefit to their children.

Additional Considerations

Section 60CC(3)(a) Any views expressed by the children

1. Both children have in the past three years, expressed hostile views about their father.  At one stage a Family Consultant observed that, “…it appeared impossible for either child to say anything positive about him.”[4]

   [4]  Family report of Mr G dated 4 August 2010, par 51

2. However, I accept the opinion in 2009 of the Family Consultant that the children’s negative statements probably arose from a fear that they would be removed from the care of their main parent, their mother and shared equally between their parents.

3. Dr R, Psychiatrist, was appointed to prepare a report.  Dr R’s observations were that J was allied with his mother and influenced by his sister in rejecting his father.

4. The child A too was assessed as actively engaged in her parent’s conflict and was protecting herself by seeing mum as all good and dad as all bad.[5] Dr R considered that A’s wishes were immature and should not be the basis for decisions about time with the father, unless there were findings (in due course) of abusive conduct by the father to the children or the mother.

   [5]  Report of Dr R dated 2 May 2011, pages 7-8, 16

5. The expressed wishes of both children to “never see my Dad” (A), “never … see my Dad again” (J) were considered not to be a genuine expression of feelings of either child.

6. Currently, the children, on the evidence of both parties, are spending time with their father and mostly enjoying that time.  They are sensitised to the possibility of conflict erupting when their parents are together.

Section 60CC(3)(b) The  nature of the relationship of the children with their parents

1. The mother has been the primary carer for the children throughout their lives.

2. The father has been actively involved in the lives of the children and had the day to day care of J for an extended period before he started school. 

3. The children have their most important relationships with their parents. Members of the extended maternal family are also important to them.  Relationships with the extended paternal family may become important in the future.

Section 60CC(3)(c) Participation in decisions about major long term issues

1. The parents have discussed long term issues.  For instance, a change of school for the children.  The father compromised on that occasion, his preference being for a public school.

2. There has not been easy communication in the past.  However, both parents have undertaken parenting courses and have committed themselves to equal shared parental responsibility.

3. The parents have had rigid views about the division of care and communication by telephone which have frightened the children and undermined their stability in the primary care of their mother.

Section 60CC(3)(e) the practical difficulty and expense of the children spending time with and communicating with a parent

1. The parents live in neighbouring suburbs and are part of the same community.

2. Changeovers will mostly be at school and otherwise at a family restaurant nearby. The orders provide for third parties to assist with changeovers as necessary. The process will be easier for the children if a parent notifies the other in advance as to who will be attending.

3. The orders also provide for the children to telephone the father at any reasonable time on the pre-paid mobile he provides.  The orders also permit the father to telephone the children once per week at a defined time.  This is designed to reduce repetitive calls and resistance by the children to taking calls.

Section 60CC(3)(f) The capacity of the children’s parents to provide for the needs of the children

1. The assessment of the parents by Dr R is as follows[6]:

   [The mother] presented as a committed parent who clearly cares for the children, but is too disgruntled with [the father’s] perceived personal and parenting failures to positively promote him to the children...

   …[The father] presented as a caring parent, who is committed to continuing his relationship with the children, which he alleges is not as compromised as his ex-wife indicated.

   [6] Report of Dr R dated 2 May 2011, page 17

2. As to the care and commitment the parents feel for their children, the views of Dr R accord with my own observation of the parties.

3. Dr R interviewed the parties early in 2011.  By late May 2012 when this matter was heard, the situation had changed.  The mother was no longer expressing a view that it was “too late” for the father to form a relationship with the children.  More than a year of uneventful periods of time with the father had changed her view. 

4. Both parties had undertaken the recommended parenting courses.  Further both had begun to understand the needs of the children to have a loving relationship with each of the parents as separate from their individual needs as former spouses, to maintain distance from each other.

Section 60CC(3)(g) The maturity, sex, lifestyle of the children and of their parents

1. The children are a 10 years old girl and an eight year old boy.  They are Australian children born to Egyptian parents.  They are members of the Coptic Christian faith and are active in that community.

2. Both children are doing well at school.  The child A in particular is academically strong.  In her oral evidence Dr R referred to her as “very bright and inquisitive” with a will and a capacity to work things out for herself.

3. The child J has sometimes expressed his feelings through misbehaviour at school, but has settled down.

4. Both parents have had tertiary education.  No doubt they would like to see their children educated to the highest level each can achieve.

Section 60CC(3)(i) The attitude to the children, and to the responsibility of parenthood, demonstrated by each of the children’s parents

1. Both parents have lost focus at times on the separate interests of their children.  However, they are each loving and devoted parents.  The assessment of Dr R that, “The couple’s relationship was difficult and unrewarding for both parents”[7]this is more likely to be the explanation for the angry conflict over the children than any lack of responsibility from either parent.

   [7]   Report Dr R dated 2 May 2011, p 17

Section 60CC(3)(j) Any family violence involving the children or a member of the children’s family

1. The parties separated early in 2009 in high conflict.  After an initial interim ex parte AVO which covered the period of physical separation, there have been no further allegations of family violence.

2. By 25 February 2010 there were no AVO orders in place.  The child A has a memory of the turbulent events of separation which should continue to diminish if no longer discussed within the family.

Section 60CC(3)(l) Whether it would be preferable to make the order that would be least likely to lead to further proceedings

1. The orders provide for equal shared time in holidays and for special occasions.

2. During school terms the children will spend more of their time with their mother. This will be a continuation of current arrangements with an increase of weekend time and holiday time.

3. The orders are designed to meet the needs of the children for more time with their father while ensuring as little change as possible to the current routine of their lives.

4. In the event that the parental relationship improves to a level of easy face to face regular communication, the parties may be able to vary orders by agreement.  Until then the orders are structured for certainty.

5. The mother provides most if not all of the financial support for the children.  The father had a child support assessment of nil in January 2012[8].  The mother pays for school fees, uniforms and associated expenses at a Christian School.  This is in a context where the parties agreed on a private religious school for the children, although the father preferred a public school.

   [8]  Exhibit ‘10’

6. The father obtained a university degree in Egypt.  His intention was to undertake the work to be awarded a further university degree in Australia, but was unable to complete this course due to a work accident.

7. The father is fluent in English.  He has the capacity to earn a reasonable income and contribute much more substantially to the costs of raising the children, particularly their education.

8. Sharing the costs of raising the children would relieve the burden on the mother and may assist her in accepting that the father is focused on the welfare of the children and not on past conflict.

Section 60CC(3)(m) Any other fact or circumstance that the court thinks is relevant

1. The orders provide for more time between the children and their father on a graduated basis.  The likely effect is that the relationship between them will strengthen and deepen.

2. In relation to reasonable practicability, for the purposes of s 65DAA(5) of the Act I take into account the following:

   (a)The parents live reasonably close together and each drives a car.  There are no financial or geographical constraints on the movement of the children.

   (b)The parents do not have a current capacity to implement an arrangement for the children spending equal time.  The father perceives it as a means of making up for lost time during the three and a half years since separation.  He also wants the children to understand that both parents are equally important.

   The mother believes it would be adverse to the children’s interests to rotate weekly and is unlikely to be able to support it.  Dr R has expressed an unwavering view in her report and in her oral evidence that the children would not cope well with such an arrangement.

   (c)The parents have a limited capacity to communicate with each other and resolve difficulties.  They are each still uneasy about the motives of the other. 

   They do not speak to each other directly.  Each has attributed behaviour of the children directly to the other.

   There is some real hope for improvement, but at this time if the children raised a concern about arrangements, conflict would probably follow.  There is an order for family therapy.

   (d)       The children have been adversely affected by their parents’ mutual        hostility and mistrust.

   The child A has experienced anxiety.  The child J has been disturbed at school.

   (e)      The children have been assessed as reacting negatively to sudden          change.

   The circumstances of separation, the antagonism they have lived with, has made them acutely conscious of their significance to their parents.

   Being shared equally between their parents would be for the benefit of a parent not themselves.  The child A in particular would understand that.  However, they have settled reasonably well over the last 18 months.  An increase in the length of the alternate weekend to Thursday after school until the following Monday before school should be manageable.

   The additional benefit is that the children will know they spend every Thursday night with their father; one week overnight, the next as part of a four day block

3. I do not consider that equal time is in the best interests of the children.  The orders provide for substantial and significant time which is reasonably practicable.

I certify that the preceding seventy eight (78) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 24 August 2012

Associate: 

Date:  24 August 2012