Sullivan & Tyler (No 4) - [2013] FamCAFC 175

FAMILY COURT OF AUSTRALIA

SULLIVAN & TYLER (NO. 4)

[2013] FamCAFC 175

FAMILY LAW – .APPEAL – Interim orders – whether there were significant changes - where evidence is untested – where the evidence will be tested at final hearing.

FAMILY LAW – APPEAL – leave to appeal against procedural orders – where trial directions were made – where the trial did not go ahead – where the direction is in relation to an expert witness – where a single expert has already been appointed – where one party does not regard the expert as having the required expertise – where there are criminal proceeding running at the same time – where the mother had legal aid funding for both final hearing in the Family Court of Australia and in criminal proceedings – whether there has been an error of principle and/or a substantial injustice.

FAMILY LAW – COSTS – where the mother was unsuccessful

Criminal Procedure Act 1986 (NSW)
Family Law Act 1975 (Cth) ss 65(Y), 114(3), 118(1)(c)
Family Law Rules 2004 (Cth) r 11.04(1), 15.06

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc. (1981) 148 CLR 170

CDJ v VAJ (1998) 197 CLR 172

Langmeil & Grange [2013] FamCAFC 31

Marsden v Winch (2009) 42 Fam LR 1

Rice & Asplund (1979) FLC 90-725

SPS & PLS (2008) FLC 93-363

APPELLANT:

Ms Sullivan

RESPONDENT:

Mr Tyler

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

SYC

889

2008

FIRST APPEAL NUMBER:

2013

SECOND APPEAL NUMBER:

128

2013

DATE DELIVERED:

1 November 2013

PLACE DELIVERED:

Perth

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace, Ryan & Fowler JJ

HEARING DATE:

23 September 2013

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

30 January 2013 (EA 22 of 2013) and 15 August 2013 (EA 128 of 2013)

LOWER COURT MNC:

[2013] FamCA 39

REPRESENTATION

FOR THE APPELLANT:

Ms Sullivan appeared in Person

SOLICITOR FOR THE RESPONDENT:

KDB Holmes Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Berry

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

IT IS ORDERED (AS AMENDED PURSUANT TO RULE 17.02):

Appeal EA 22 of 2013 - Order of 30 January 2013

Grant leave to the mother to file an application to adduce further evidence.
Application to adduce further evidence dismissed.
Appeal be dismissed.

Appeal EA 128 of 2013 - Order of 15 August 2013

Refuse leave to the mother to appeal against the procedural orders of Watts J made on 15 August 2013.

Appeal EA 22 of 2013 and EA 128 of 2013

Mother to pay the father’s costs of and incidental to both appeal EA 128 and EA 22 in the sum of $3,800 within 42 days of this order.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sullivan & Tyler has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Numbers: EA 22 of 2013; EA 128 of 2013
File Number: SYC 889 of 2008

Ms Sullivan

Appellant

And

Mr Tyler

Respondent

REASONS FOR JUDGMENT

Introduction

By her amended notice of appeal filed on 2 September 2013 (EA 22 of 2013), Ms Sullivan (“the mother”) appeals against interim parenting orders made by Watts J on 30 January 2013. In addition, she seeks leave to appeal and if leave is given, to appeal against trial directions he made on 15 August 2013 (EA 128 of 2013). Orders refusing the mother’s application for leave to appeal the trial directions orders were made at the conclusion of the hearing. We indicated our reasons would be given in conjunction with judgment in relation to the interim parenting appeal. These are those reasons.
By the January 2013 orders, his Honour dismissed the mother’s application to vary interim parenting orders made by Loughnan J on 22 November 2011. The gravamen of her applications to both judges was that the parties’ only child should live with her and he was at risk in his father’s care. Having failed before Loughnan J to secure an interim order that the child lives with her, the effect of dismissal of her application by Watts J, is that the child remains in the father’s care and she is restricted to spending time with the child under supervision. Watts J made an interim order that the father have sole parental responsibility which is also under challenge.
In relation to the application for leave to appeal, on 15 August 2013, Watts J listed these complex parenting proceedings for final hearing for 10 days to commence on 9 December 2013 in relation to which consequential orders were also made.
The father opposes the appeal and application for leave to appeal.
An Independent Children’s Lawyer (“ICL”) appeared for the child and sought to uphold both decisions.
The mother sought and without objection was given leave to make an oral application to adduce further evidence in the interim parenting appeal. That evidence is contained in her affidavit sworn on 23 September 2013. In short, she sought to rely on a mandatory child at risk report from H Public School which is dated 16 May 2011 and time out records from AC School. For reasons which will be discussed later, the mother’s application to adduce further evidence will be dismissed.

Background Facts

In order to provide context to both the appeal and application for leave to appeal, it is necessary to briefly recite what we understand are relatively uncontroversial facts. Essentially, these are found in the judgments of the trial judge, prior decisions of the Full Court and the material relied on by the parties before the trial judge.
The parties commenced cohabitation in 2003 and married in August 2004.
The child was born in August 2004.
According to the mother, in October 2007, the child said things to her which caused her to become concerned about his treatment by the father. It is the mother’s evidence that since then the child has said things to her and demonstrated conduct which she says is evidence that he has been sexually abused by the father who has also subjected him to emotional abuse.
The child was interviewed by the NSW Police and Department of Community Services Joint Investigative Review Team (“JIRT”) in December 2007.
The mother says that on 1 January 2008 the father proffered an explanation for the child’s statements following which she left the family home with the child.
The father filed an application for parenting orders on 18 February 2008, in broad terms, seeking that he have sole parental responsibility and that the child lives with him. As a final order, he sought that the mother spend time with the child “as the courts deems fit.” By way of interim orders he sought that the child lives with him from 9:00 am until 7:00 pm on each alternate day with the father collecting and returning the child from the mother’s residence. He sought that the child lives with the mother at all other times.
In her response filed 28 February 2008 the mother sought orders that she have sole parental responsibility and that the child lives with her. She sought that no order be made as to the child spending time with the father. The effect of her proposed orders is that she would determine whether or not the child would spend time or communicate with the father and the circumstances under which any contact would occur.
As a consequence of the mother’s allegations that the child had been sexually abused by the father, the proceedings were placed in the Magellan list.
On 29 February 2008, Watts J made an interim order for the child to spend time with the father under supervision at Central West Children’s Contact Service.
Shortly afterwards Dr W was appointed as the single expert. His report was released on 10 April 2008.
Without first informing the father and without his consent, on 24 April 2008, the mother removed the child from Australia and effectively disappeared.
On application by the father on 1 May 2008, an interim order was made which restrained the child’s removal from Australia.
Ex parte interim orders were made on 7 May 2008. These included orders that the child live with the father and that a recovery order issue. These orders are set out below:
2.That pending further Orders, [the child], do live with [the father] born...
3.That [the child’s] Mother…. do forthwith deliver [the child] into the care of his Father.
5. That:
5.1any person from time to time holding or acting in the capacity of a Police Officer of the Commonwealth or of a State or Territory;
5.2any person holding or acting in the office of a Child Recovery Officer; or the Marshal of this Court;
be authorised and directed, with such assistance as he or she requires or they require and, if necessary, by force:
5.2.1to stop and search for any vehicle, vessel or aircraft, and search any premises or place for the purposes of finding the child;
5.2.2to enter and search the premises where it is reasonably considered the child may be found;
5.2.3to recover the child;
5.2.4to deliver the child to the Applicant Husband;
5.2.5to arrest, without warrant, the Respondent Wife in the Respondent Wife again removes or takes possession of the child.
7.That the Mother have liberty to apply to this Court to set aside or vary some or all of these Orders upon giving 24 hours notice to the Court and to the Father’s Solicitors.
5.If the child comes to live with the Father pursuant to these Orders, the Father’s Solicitor is to notify the Independent Children’s Lawyer forthwith.
8.That these proceedings be restored to the list on application by any party on 24 hours notice, before Judicial Registrar Johnston or Justice Watts if practicable.
10.Permission to issue subpoena to Department of Immigration and Multi Cultural Affairs in relation to travel records of the Mother, which may be returnable on the same day as provided in Order 9 namely 9.30am on 14/5/08.
It would appear that the father and court learned that the mother had removed the child from Australia from documents produced under subpoena .
Dr W wrote a letter to the ICL on 27 May 2008 in which he expressed grave concerns for the child’s safety.
A warrant issued for the mother’s arrest in early June 2008.
On 11 June 2009, NSW Police issued a warrant under the Criminal Procedure Act 1986 (NSW) for the mother’s arrest in relation to the allegation that in breach of s 65(Y) of the Act she removed the child from Australia.
After an extensive international search, in early September 2010 the mother and child were located in The Netherlands. She was remanded in custody and the child was placed in a child protection facility.
The father travelled to The Netherlands and the child saw him under supervision on 13 September 2010. This was the first time they had seen or spoken to each other in some two and half years.Under the supervision of Dutch authorities, contact between the child and the father continued.
Although the details are not entirely clear, we understand that the child was able to visit the mother on one or more occasions while she was in custody.
In late October 2010, an application pursuant to the Hague Convention on the Civil Aspects of International Child Abduction was made seeking that The Netherlands return the child to Australia.
On about 7 December 2010, pursuant to orders made by a Dutch court, Dutch authorities placed the child in the father’s care, albeit as we understand it, subject to oversight. It was not until mid January 2011 that the child was permitted to leave The Netherlands and on 18 January 2011, the father and child departed. They arrived in Australia on 24 January 2011. The child has lived with the father in Sydney ever since.
At the commencement of the 2011 school year the child was enrolled at H Public School. As we understand it, the parties and ICL agree that the child’s transition to schooling in Australia has been very difficult.
The mother was extradited to Australia and, following her arrival on 10 March 2011, she was remanded in custody. Bail was granted and she was released on 3 June 2011. She has resided in Australia ever since.
Unable to cope at H Public School, the child was accepted by AC School, which is a children’s psychiatric unit located at a hospital. He commenced at AC on 28 June 2011. The child’s attendance at AC was part of a multi-faceted strategy to help him. AC operates in conjunction with A Child and Adolescent Mental Health Service who, as the name would imply, offered special assistance to the child and his family. It would appear that the child maintained a connection with H Public School, and when the interim parenting hearing occurred before Loughnan J in late 2011, he was attending AC four days a week and on the fifth was at H Public School.
The mother considers that the child’s involvement with A Child and Adolescent Mental Health Service is inappropriate, inter alia, because she says they are not specialists in the forensic assessment of child sexual abuse or trauma; failed to consider whether the child’s disturbance is because he is forced to live with an abusive father; have proceeded on the basis of incorrect information provided by the father and that the child is separated from the person who, for his first six years of life was his primary carer.
The mother filed an application for interim orders on 29 June 2011. In essence, she sought that the child live with her brother and his wife, that she be permitted to reside with them and have unsupervised time with the child. In relation to the father, she said that the child’s time should be supervised.
The mother’s June 2011 application was determined by Loughnan J on 18 August 2011. Her application was unsuccessful and orders were made which facilitated her having supervised time with the child at a contact centre, as well as telephone contact twice a week.
The mother filed a further interim application on 15 November 2011 in which she sought that the child live with her at her brother’s home. In the alternative, that he live with her brother and sister-in-law and not spend time with his father. The mother’s application to change where the child lives was dismissed on 22 November 2011 and interim orders were made for her to see him under supervision. Thus, in relation to the child’s living arrangements, the operative orders were those made on 7 May 2008 and in relation to his time with the mother, in accordance with the orders made by Loughnan J on 22 November 2011 as set out below:
…
2.That [the child] spend time with the mother for two hours each week or such longer period as the Central West Contact Centre may permit supervised by the said centre.
3.That the child spend such further supervised time with the mother as can be arranged with the Sydney Children’s Contact Centre at Redfern when time becomes available, such supervised time to be in addition to the time referred to in the last preceding order.
4.That both parties comply with all rules, requirements, requests or directions of the staff of the relevant contact centre.
Provision for twice weekly telephone contact between the mother and child continued.
In a report dated 5 December 2011, A Child and Adolescent Mental Health Service (Dr G) diagnosed the child with Oppositional Defiant Disorder, Attachment Disorder and Anxiety Disorder.
The mother filed an appeal on 19 December 2011 against the orders made by the Loughnan J which required her time with the child to continue to be supervised and in relation to orders concerning the single expert. The father filed a cross-appeal which challenged Loughnan J’s failure to make an order that he have sole parental responsibility and in relation to the order concerning the single expert. The appeal and cross-appeal were dismissed on 13 June 2012.
In the meantime, on 12 January 2012, the mother presented another application for interim orders. Essentially she applied for unsupervised time with the child and, in the alternative for a change in the contact centre, changes in relation to the payment of supervision fees and seeking that she be notified about a number of issues concerning the child including medical appointments, extra-curricular activities, change of address and other similar things. Loughnan J heard and dismissed the mother’s application on 2 February 2012.
In February 2012, the father and child attended a one week inpatient residential program at A child and adolescent mental health service.
On 4 July 2012, Dr F, a child psychiatrist and medical director at A Child and Adolescent Mental Health Service reported that the child:
…[h]as made good progress with emotional and behavioural stability, though some difficulties persist.
He has continued to exhibit inattentiveness and distractibility. I consider that a diagnosis of Attention Deficit Hyperactivity Disorder is warranted.
I have prescribed “Ritalin” in a dose of 10mg at breakfast and 5mg at lunch.
By Term 2 2012 the child had returned to H Public School. However, sometime during July 2012, the Principal advised the father “… that a school with more specialist teacher skills and smaller class sizes would be preferable for [the child]. The Principal … suggested [ER] Public School … as an appropriate school …”
Arrangements were then made for the child to attend ER Public School four days each week and, on the fifth, he continued at H Public School. Counselling and therapy for the child continued. The mother is concerned that since 2011 the child has attended three schools and that she was not informed that he was transferred to ER Public School.
On 9 August 2012 Watts J listed the proceedings for final hearing to commence on 19 November 2012 and made consequential orders. Relevant to the mother’s appeal in relation to trial directions, by Order 24, it can be seen that his Honour departed from r 15.06 of the Family Law Rules 2004 (Cth) (“the rules”) and ordered that in the final hearing the parties could rely upon affidavits filed in interim proceedings. As it transpired, on 22 October 2012 the mother was granted an adjournment of the final hearing.
In the meantime, on 22 August 2012, she filed an application for interim parenting orders which, in relation to the child’s living arrangements, sought that pending the final hearing the child live with her. Failing that, that he spend half of each week with her and the balance with his father. Twice the mother amended her application for interim orders, with her amended application filed on 15 November 2012 being the one relied upon by her in the hearing before the trial judge and the subject of this appeal.
The mother’s application came before the trial judge on 22 November 2012. Judgment was reserved until 30 January 2013.
At this juncture it is appropriate to record that the mother filed an appeal on 8 November 2012 in relation to an order by the trial judge appointing Dr R as the single expert. This appeal was dismissed on 25 March 2013.
Two applications for special leave to appeal to the High Court (S35 and S36 of 2013) were filed by the mother on 11 March 2013. In essence, the applications for special leave concerned dismissal of her appeals from the orders made by Loughnan J. Because her arguments in the special leave applications resonate with those made in the interim parenting appeal and sought to impugn the judgment and orders made by Watts J on 30 January 2013, it is instructive to set out in full the details relied upon by the mother.
…
Grounds
2.Miscarriage of justice by reason of :
(a)suppression/ withholding of evidence by way of removal of relevant subpoenaed records from the [H Public School] file held at the Family Court in August 2011
(b)withholding of evidence by the Central West Contact Service as instructed by the independent children’s lawyer.
(c)failure to disclose relevant evidence by [A Child and Adolescent Mental Health Service].
(d)Loughnan J gave orders and reasons for judgment that relied heavily on the fact that the suppressed/withheld evidence was not before the court.
(e)I only became aware of or gained access to sets of supressed/withheld and non disclosed evidence on the following dates: 25 March 2012, August 2012 and 29 January 2013.
(f)the suppression/withholding of evidence and failure to disclose relevant evidence resulted in custody orders being made that would not have been made if the evidence had been present on 22 November 2011.
(g)one further interim hearing was held on 22 November 2012 which based its judgment extensively on the miscarried judgment of 22 November 2011. I have filed a Notice of appeal against those orders of 30 January 2012. The miscarried judgment of 22 November 2011 continues to be relied on in support of judgments and reasoning in interim hearings concerning this matter and will significantly prejudice the final hearing resulting in a further miscarriage of justice, detrimental to the child’s best interests and prejudicial to the mother’s case.
Order[s] sought
3.
(a)This matter be heard on an urgent and expedited basis as it concerns the welfare of a child.
(b)a re-trial of the interim proceedings of 22 November 2011 is ordered with the suppressed/withheld and non disclosed evidence to be admitted in the trial.
(c)the judgment delivered on 30 January 2013 by Justice Watts be dismissed due to its extensive reliance on the miscarried judgment of 22 November 2011.
(d)[The child] to live with his mother pending the results of the re-trial.
(e)[The child] to have supervised contact only with his father pending the results of an expert investigation concluded by an expert with relevant specialized knowledge in the areas of dispute: child sexual abuse, child abuse, parent psychiatric disorders and family violence.
…

We understand the mother’s reference to suppressed and withheld evidence to be the mandatory report dated 16 May 2011 from the Principal of H Public School reference to which has already been made. It would appear to be common ground that this report is not to be found in the documents produced to this Court by the school but was produced to the District Court in relation to the mother’s criminal trial. There is no suggestion that an order for the document to be suppressed has been made.
The mother filed another application for interim orders on 8 February 2013. In essence, she sought to vary an order in relation to her telephone contact and other forms of communication with the child made by Loughnan J on 18 August 2011. This application was dismissed by Watts J on 19 April 2013. Further orders were made by his Honour pursuant to s 118(1)(c), r 11.04(1) and s 114(3) which, in effect, restrain the mother from instituting interim proceedings for parenting orders in relation to the child without leave.
A further application for special leave to appeal to the High Court was filed by the mother (S80/2013). This application concerned her unsuccessful appeal against orders made by Watts J appointing Dr R as single expert for the final hearing. Although it is not entirely clear, it would seem that the mother may have withdrawn S35/2013. Her applications for special leave were refused in September 2013.
Shortly after the Central West Contact Service said they would no longer supervise the child’s time on 26 July 2013, she filed an interim application for unsupervised time. This application was dismissed by Watts J on 14 August 2013. Since the contact centre withdrew its services, the child has not seen the mother.
The trial judge made orders on 15 August 2013 listing the matter for final hearing and made consequential orders.
By two applications in an appeal filed on 6 September 2013 the mother sought expedition of her four notices of appeal. Rather than clutter these reasons with reference to each and every appeal and cross-appeal filed by the parties, reference is only made to those germane to this appeal.
Expedition of the mother’s appeals in relation to the interim parenting orders [EA 22 of 2013] and trial directions [EA 128 of 2013] was given on 16 September 2013. Her applications to expedite appeals EA 51 of 2013 and EA 62 of 2013 were refused.

EA 22 of 2013 – Interim parenting orders

The trial judge’s reasons

His Honour commenced determination of the mother’s application for interim parenting orders and the father’s application for sole parental responsibility with the indication that it was 12 months since Loughnan J made interim parenting orders concerning the same subject matter. In the meantime the mother’s appeal against Loughnan J’s orders was dismissed.
Having summarised the proposals put by each of the parties at [11], his Honour noted the position of the ICL was that the mother should not be given unsupervised time and the father’s application concerning weekend time should be refused. In relation to his application for sole parental responsibility, that too should be refused unless orders were put in place which enabled the mother to participate in some fashion before the father made a decision reliant upon him having sole parental responsibility.
There followed a concise chronology, the accuracy of which is not in dispute and which finds expression in the background facts to which we have already made reference.
At [50], his Honour explained that the mother’s further interim application proceeded in circumstances where:
…ten days that had been set aside for the final hearing of the matter had been vacated because of the inability to obtain a Chapter 15 expert report and because of the adjournment of the hearing of the mother’s criminal trial.
His Honour then summarised the mother’s argument that Rice & Asplund (1979) FLC 90-725 and the cases which follow it are not good law and should not be followed by his Honour. As his Honour observed, he is bound by authority. Thus, his Honour explained at [55] that “…whilst having regard at all times to what is in the child’s best interests” he needed to be satisfied that there had been a significant change in the child’s circumstances subsequent to the 22 November 2011 interim orders. -
The matter, being an interim hearing, the trial judge explained that he was primarily concerned with matters that are uncontroversial or where objective evidence wholly pointed in one direction. By way of elaboration as to the approach that would be adopted, at [75], his Honour referred to the approach discussed by Loughnan J in his judgment of 22 November 2011, in particular:
…that it might not be possible for a court to make findings of fact in relation to any particular matter without tested inquiry which is not possible on the papers alone. Also the court has to behave in a conservative way in interim proceedings because of that very fact. It goes without saying that as a general proposition, in cases such as this where his Honour observed there to be a large number of disputed issues between the parents, the court is not at liberty to make findings of fact on a disputed issue of fact unless there is independent evidence that excludes one version of events or wholly supports another.
As to the context in which the hearing would take place, his Honour thought it possible that the final hearing would occur some time during 2013. Reference was made to information provided by the mother that her criminal trial would almost certainly proceed in May 2013, but as his Honour somewhat presciently observed, whether it proceeded as listed remained to be seen. In this regard, the mother’s position had been that she wanted to be able to rely upon a report from the single expert obtained in these proceedings as part of her defence in the criminal proceedings. Although it was anticipated that that report would have been prepared by February 2013, the mother having appealed against the decision to appoint a particular single expert, the report had been delayed. In any event, notwithstanding these uncertainties his Honour proceeded on the basis that the orders he made would hopefully continue for no more than about 12 months [100].
After his Honour referred to the volume of material and submissions relied upon by the mother, he summarised the parameters for the hearing which, at its commencement, he had outlined.
Consistent with the proper application of the line of authority developed from Rice & Asplund, his Honour said he would not take into account as a change in circumstance matters that predated the 22 November 2011 orders unless, in relation to the evidence upon which the mother relied, it had not been available to her for that hearing. Being the able advocate that she is, the mother presented an alternate argument to his Honour predicated upon application of the principles in Rice & Asplund. His Honour captured the key planks to the mother’s argument that there had been a significant change, in particular:
·a severe deterioration in the mental and behaviour health of the child, evidenced in part by his attending a third school in a matter of months and on ever increasing medication [60];
·evidence that the father repeatedly hits the child, locks him in his room until he goes to sleep and that the child said he was frightened on numerous occasions [63];
·renewed signs of sexualised behaviour and playing sexually with other children [64].
As his Honour observed, the mother argued that the totality of the evidence, demonstrated that the child had been well in her care and has declined in his father’s care and that this revealed a significant change in the child’s circumstances, She argued that mental health intervention had been ineffective and that regardless of the assistance which had been provided to the child, unless he was placed in her care, he would continue to decline. In support of this proposition she relied on evidence which she said established “the father’s fragile mental status” and that his mental health difficulties were treatment and therapy resistant.
At [66], reference was made to a translation of a safety indicators checklist dated 18 December 2010 prepared when the child was in school in Europe. Although this document predated the 22 November 2011 orders, his Honour proceeded on the basis that it had not been available to the mother and he would consider it in the hearing undertaken by him. In particular, the mother focused her attention to the assessment of risk factors in relation to the child where in answer to three factors; physical and/or mental handicap, psychiatric and/or psychological problems and serious behavioural problems, the author marked those boxes to indicate that in relation to the child these were not concerns.
At [67] his Honour accepted the submission made on the father’s behalf that it would be unsafe in this interim hearing to reach any conclusions based on that document. It is appropriate to observe that we agree.
Consideration was then given to the significance of the multiple diagnoses recorded in the psychiatrist’s letter dated 5 December 2011, to which we referred at [68] of these reasons. It was accepted by his Honour that Loughnan J had not known that the child was diagnosed with Oppositional Defiant Disorder, Anxiety Disorder and Attachment Disorder. However, he viewed as significant remarks made by Loughnan J which demonstrated that even without the 5 December 2011 diagnoses, “… his Honour was cognisant that the child had significant behavioural problems” [69]. As an aid to understanding the remarks made by Loughnan J to which his Honour referred, we set them out below:
26.I don’t want to underestimate the concerns that were raised that led to the [AC] reference. The fact alone, that a child of his age would be four days a week at [AC] and not with his cohort at the [H] primary school, suggests that there were very real concerns for [the child]. One can read in the notes of the school, the concerns and frustrations of the staff, concerns for other students and concerns for the boy himself… (Loughnan J, reasons for decision dated 22 November 2011)
Consideration was then given to a letter dated 4 July 2012 written by Dr F who, as his Honour correctly summarised at [70], “…opines that [the child] has made good progress with emotional and behaviour stability, though some difficulties persist”. Dr F diagnosed the child with Attention Deficit Hyperactivity Disorder and prescribed Ritalin. It was noted that the mother disputes this diagnosis.
Having again referred to the changes in the child’s schooling, the reasons for those changes and the evidence that as at March 2012 the child’s teacher said he struggled in a range of subjects, in the classroom and with his peers, his Honour acknowledged that it is the father’s case that there had been an improvement in the child in the last 12 months.
We endorse his Honour’s comments at [74] that “[i]t is almost impossible, without a proper airing and testing of the material that I have been given, to make any assessment as to which parent’s assertion about the child’s psychological health and schooling is accurate…”
At [76] and following his Honour turned his attention to the relevant s 60CC(2) and (3) provisions of the Act which required consideration.
In relation to the benefits to the child of a meaningful relationship with the child’s parents, his Honour noted that Loughnan J had concluded that the child enjoyed a meaningful relationship with the mother and the father. His Honour found that there was no undisputed fact which would persuade him to reach a different conclusion.
He then turned his attention to s 60CC(2)(b) (protection from harm) which he correctly identified as being the focus of the mother’s submissions to him.
Having previously referred to the voluminous evidence upon which the mother relied and in which she provides a very details account of facts which she says unambiguously establish that the father sexually abused the child and has subjected him to physical and psychological harm. At [82] his Honour explained:
…I am unable on an interim basis to conclude that there is any substance to the mother’s fears that the father has sexually abused [the child]. Dr [W’s] untested evidence points in the opposite direction.
His Honour had previously referred to the JIRT investigation which, we understand it is common ground, did not result in the allegation of abuse being substantiated and, at [82], his Honour referred specifically to the report provided by Dr W. The mother’s challenge to its accuracy is noted. However, his Honour accepted that Dr Ws’ evidence, which he noted had not been tested, supported the father’s assertion that he had not sexually abused the child.
Consideration was then given to the impact on the child’s psychological health of continuing to live with the father compared with him being returned to the mother. Again, it is common ground that the child has been subjected to psychological harm which, as his Honour found, the mother says is entirely or predominantly the result of the father’s behaviour towards the child. This argument was not accepted by his Honour who, in effect, indicated that such a finding could not be made at this interim hearing, but “… at the final hearing, the mother may be able to establish [that point]” [85].
On the other hand, the trial judge noted the argument made on the father’s behalf that the mother is “a flight risk”. Because his Honour’s findings in relation to this issue were the subject of challenge by the mother, it is appropriate we set them out in full:
86.…The mother says she left Australia because at that time at least she was firmly of the view that [the child] was being sexually abused by his father. I have insufficient evidence to be able to accurately assess what current level of flight risk the mother poses. On the face of it, in 2008 the mother had a certain belief about the father’s behaviour. A number of things that the mother said during these proceedings before me would indicate that she still holds similar views about the risk that the father poses to [the child] and the risk [the child] is at whilst he is in his father’s care. The mother was at pains to attempt to explain to me why she would not attempt to leave the country again. The mother says that in 2008 she had no idea that she was committing a criminal offence. She submitted the court would be confident given that she now knows she is committing a criminal offence, that she would not do so. Secondly, the mother asserts that she would not do so because she understands that such an action would be fatal to any chance that she had in obtaining a court order that [the child] return to primarily live with her. The mother is highly intelligent and the preparation of her material shows she is quite resourceful. Subject to full inquiry I am not prepared to assume that placing [the child] in the mother’s care on an unsupervised basis would not expose [the child] to being secreted again from his father as he was in 2008. Counsel for the Independent Children's Lawyer submitted that I should not take that risk and I agree in the short term it is inappropriate to do so. The mother may well be able to convince the court at a final hearing that she is no longer a flight risk.
As to the balance of the s 60CC(3) factors, his Honour referred to the discussion of these matters by Loughnan J at [28] to [40] of his reasons for judgment delivered 22 November 2011, in relation to which the trial judge considered there was “not a great deal” that had changed. The exception to this was that the child’s time at the contact centre could not be facilitated by that service and evidence from the mother that the child said he wanted to spend time with her.
At [88] his Honour found that the mother had not established “…by independent evidence which wholly supports her view or excludes the father’s view…” that there had been a significant change subsequent to 22 November 2011 which would justify those orders being changed. He also explained that taking into account the entirety of the evidence about the child’s current situation, he was satisfied that the operative interim orders were, pending a final hearing, in the child’s best interests.
Consideration was then given to parental responsibility. The father sought an interim order that he have sole parental responsibility on the basis that he would first consider any view expressed by the mother before he exercised that power. The mother sought an interim order that the parties have equal shared parental responsibility.
Having referred to the mother’s views about the father’s inadequate parenting capacity, his Honour observed that she argued that an order for sole parental responsibility would result in her being unable to consult with the child’s doctors, schools and the like. His Honour found that would not be the effect of an order for sole parental responsibility.
No challenge is made to his Honour’s finding at [96] that:
The father correctly submits that the mother opposes the current schooling for the child, the medication that the child is currently receiving, the medical practitioners who are currently treating the child and that the mother continues to believe that the child is at risk of sexual abuse on a daily basis while in the care of the father.
Reference was made by his Honour to correspondence from the mother which established the point made in [96] of his Honour’s reasons.
Reflecting on the high conflict which exists between the parties, his Honour said that it was necessary that somebody have the ability to make final decisions in relation to the serious issues faced by the child. In circumstances where he had determined that pending the final hearing the child should continue to live with the father, his Honour said that the father should have interim sole parental responsibility subject only to him giving the mother an adequate opportunity to provide input into the decision.
There only remained for his Honour to consider an application that the father be able to have the child for an occasional full weekend; which would have the effect of suspending the mother’s time on that weekend. His Honour found that it was more important to the child to be able to spend time with the mother on weekends and thus the father’s application was dismissed. This decision is not the subject of challenge.

Grounds of Appeal - Interim Parenting Orders EA 22 of 2013

The mother, acting for herself, prepared the grounds of appeal and summary of argument. The grounds are somewhat discursive and opaque as is the written summary of argument. We were able to clarify the thrust of each ground of appeal during oral argument.
The mother relied on her amended notice of appeal filed 2 September 2013. Her challenge may be summarised as follows:
·the trial judge failed to accept there were significant changes in the child’s circumstances so as to justify an interim hearing based on consideration of the totality of the child’s circumstances (ground 1);
·the trial judge adopted and repeated erroneous findings and reasoning by Loughnan J in his reasons for judgment given 22 November 2011 and failed to consider relevant evidence (which she identified) (ground 2);
·erred in failing to make findings as to the risk to the child “until a final hearing” and in making erroneous findings concerning the magnitude of risk which the mother posed for the child (ground 3);
·erroneously based the decision to grant the father interim sole parental responsibility “on a wrongful prejudgment that [the child] would be ordered to live with [the father] at a final hearing based on the interim status quo (ground 4);
·Ground 5 - which argued prejudgment was abandoned.

Ground 1

Ground 1 concerns the “rule” in Rice & Asplund. It is argued by the mother that his Honour failed to appreciate there had been a sufficient change in circumstances to warrant another hearing in relation to the child’s living arrangements pending the final hearing.
The “rule” in Rice & Asplund refers to remarks made by Evatt CJ in that case at [78,905-06]:
The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that … there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material …
Evatt CJ continued:
These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.
The rule is a manifestation of the best interests principle and founded on the notion that continuous litigation over a child or children is generally not in their interests (Langmeil & Grange [2013] FamCAFC 31). The application of the rule is connected to the nature and degree of change sought to the earlier order (SPS & PLS (2008) FLC 93-363).
As to the application of the rule, the Full Court in Marsden v Winch (2009) 42 Fam LR 1 said:
50. Nevertheless, there are significant changes that occur and which do require a court to reconsider decisions previously made. Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. How is that decision to be made? The court must look at:
(1)The past circumstances, including the reasons for the decision and the evidence upon which it was based.
(2)Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
(3)If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.
Although the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”), which govern determination of the applications before his Honour, have, subsequent to Rice & Asplund, undergone significant amendment, there is no doubt that the principles established in that case and the subsequent line of authority applied to these proceedings.
In essence, the mother argued that the trial judge erred in the exercise of his discretion and failed to identify and give proper consideration to matters raised by her as amounting to significant changes in the child’s circumstances.
The mother’s summary of argument on this ground raises a number of matters which she said demonstrated significant changes in the child’s circumstances which, it was said, the trial judge had failed to take into account in determining whether to make further parenting orders.
The mother asserted that the child had failed to improve since coming into the care of the father, further, that he had deteriorated.
The mother’s position is that the child was well and well settled when with her in Europe but once removed from her and placed in the care of the father, his behaviour deteriorated to the point that he was placed in AC to address his disturbed behaviour. Further, she submitted that, far from AC having a settling effect on the child, he has been subject to physical restraint and spending time in the “time out” room at AC, facts which she says point to deterioration.
It is uncontentious that the child’s behaviour was sufficiently disturbed as to warrant intervention by psychiatrists and therapists and admission to AC, as the history of the matter to which we have referred demonstrates.
However, whether the child has deteriorated and the asserted causative link between the child’s behaviour and his return to Australia is, it seems to us, more controversial.
As we have indicated, the trial judge was well aware that this was one of the matters on which the mother relied to establish a change in circumstances and concluded that without a testing of the evidence it would not be possible to “make any assessment as to which parent’s assertion about the child’s psychological health … is accurate” [74]. Further, his Honour observed that it will be a matter for determination in the final hearing, whether the mother establishes that the change in the child’s behaviour is entirely or mostly due to the father’s conduct [85].
The finding was one open to his Honour and, in light of the nature of the proceedings being interim and without the benefit of hearing the evidence of witnesses or the testing of their evidence, we find no error in his so concluding.
The mother further argued that it was to the child’s detriment to be separated from her because she had been the child’s primary parent and to separate him from her or to limit his relationship with her would be damaging to him. She said that the deterioration in the child’s behaviour reflects that separation and, in itself, represents a significant change of circumstances..
It is undeniable that by the operation of the orders of Loughnan J the mother’s time with the child is limited. However, those orders were made by him after a hearing and the operation of those orders would not, per se, amount to a significant change of circumstances in the relevant sense.
Watts J found that the child enjoyed a meaningful relationship with both the mother and the father. Notwithstanding her argument that the inevitable consequence of the reduction in her contact with the child is that the relationship is threatened, she nevertheless did not argue that the child’s relationship with her is other than meaningful.
His Honour was astute to the fact that he was determining this application without the benefit of hearing all of the issues fully tested and considered and because of that circumstance, the Court must proceed conservatively.
We do not accept the proposition that his Honour was in error by the manner in which he dealt with the relationship of the child with his parents.
His Honour did not err in his conclusions. The mother has not made out this ground of appeal.

Ground 2

The ground argues that the trial judge failed to consider the issue by looking at the evidence “afresh” but rather asserts that he “adopted and repeated the erred findings of Loughnan J”.
In this ground, as with ground 1, the mother asserts that the trial judge failed to find that the evidence established significant change in the child’s circumstances.
The trial judge indicated to the mother at the outset of the hearing before him that his consideration of the matter was whether the mother had demonstrated a significant change in circumstances since the order of Loughnan J and consistent with that, would not take into account evidence of anything that had occurred before November 2011, when Loughnan J considered the issue of interim parenting orders [55] and [59].
Further, to the extent that the mother asserts that Loughnan J made erroneous findings, we observe that although the mother appealed Loughnan J’s orders, that appeal was unsuccessful.
It seemed that the mother argues that the trial judge merely adopted Loughnan J’s findings without making any independent enquiry himself.
As his Honour Watts J made clear in the passages of his reasons to which we have referred, his enquiry was as to the circumstances of the child since the orders or Loughnan J in November 2011. That task could not be properly undertaken without a close consideration of Loughnan J’s reasons and findings.
The asserted challenge to his Honour’s conclusions in this ground are without foundation.
As to so much of this ground as repeats the mother’s contention that the evidence before the trial judge established a significant change in circumstances we have already considered and rejected that contention in the course of dealing with ground 1.
This Ground is not made out.

Ground 3

The thrust of this ground is to assert that his Honour erred in not determining the issue of whether the child was at risk of harm at the interim hearing but left it for determination at the final hearing and in not concluding based on the mother’s evidence and her submissions that the child remained at risk of harm. It is illuminating to set out the ground in full.
Watts J erred in leaving findings concerning FLA s60CC(2)(b) until a final hearing when it was accepted that [the child] was at risk in the father’s care and Loughnan had erred in relying on the schools to offer protection against abuse from [the father] in their role as compellable notifiers when this had failed and when findings that I was a flight risk were based on inaccurate identification of the facts causing my departure and were purely speculative. Watts J erred in failing to identify the significant evidence that supported a finding that the risk to [the child] from [the father] in 2008 was greater than departing to Europe and breaking [the child’s] contact with [the father] and that I was not a flight risk.
As is readily apparent, the foundation of the ground is flawed in the assertion that it was “accepted” that the child was at risk in the father’s care. As the trial judge and indeed Loughnan J before him had been at pains to indicate, no finding on the mother’s assertions of abuse of the child could be made until there had been a full hearing and exploration of those issues.
The mother contended that since the child had been in the care of the father a further notice of abuse was made by his school to the Department of Community Services, thus demonstrating that he was and remains at risk of abuse.
The document to which the mother referred as supporting her contention of continuing abuse was a mandatory notice of abuse made on 16 May 2011 by the H Public School and which notified the department that the child was suicidal, that the carers are not refusing to provide or access mental health care, that the lack of required health care was not due to reluctance. The mandatory report noted concerns that the child had stated to the classroom teacher that he wants to kill himself, that his father had reported the child saying he does not want to live anymore and that the child ran out to the road and was restrained by the father to prevent an accident occurring on more than one occasion.
The mother relied on this document to demonstrate that Loughnan J’s conclusion about the child being protected from abuse because there are a number of agencies involved in his life and who are mandatory reporters of risk of abuse was wrong and further the mother contended that, had Watts J known of this report, his assessment of risk would have been different.
We do not accept that argument. The document does no more than reflect on conduct that was established to be of concern and observe that the child is receiving therapy. It does not support the asserted contention.
In her written argument the mother refers to documents from AC which she contends indicate that the child was not settled or improving but was not being properly monitored by the schools.
The trial judge was clearly aware of the mother’s contention that the child’s behavioural disturbance was becoming worse rather than settling and further that she contended it was because the child had been removed from her care and placed in the care of the father who is abusive of him.
It is to be observed that the evidence on which the mother relied to demonstrate that the child was at risk in his father’s care was by no means uncontroversial nor was it the only evidence on the point.
Clearly as his Honour’s reasons demonstrate, he was not in a position to make a determination of this issue before a full hearing. His Honour did not err in not making the finding urged on him by the mother.
The mother argued that his Honour was wrong in determining that there was a risk that she would flee the country if the child was placed in her care pending final hearing.
His Honour found at [86] that there was insufficient evidence before him to enable him to “accurately assess what current level of flight risk the mother poses” and concluded that subject to a full enquiry he was not prepared to assume that for the mother to have the unsupervised care of the child would not expose him to the risk of being secreted from the father.
In her oral submissions the mother argued that in coming to this conclusion his Honour failed to appreciate the complexities behind her decision to remove the child from Australia.
We observe that in her submissions to the trial judge and in her affidavit, the mother set out her reasons for removing the child from Australia. Whatever may have been the mother’s reasons for removing the child from Australia, both the trial judge and Loughnan J before him were considering this issue in the context of an interim hearing where the evidence was untested. His Honour’s determination that without the benefit of hearing all of the evidence in relation to this issue, he was not prepared to make an order that would otherwise place the child in the mother’s unsupervised care was one well open to him and the mother has not demonstrated any error.
This ground of appeal is not made out.

Ground 4

This ground concerns the trial judge’s order that the father have sole parental responsibility for the child pending the final hearing. The thrust of the ground is that the trial judge failed to appreciate and act on the risk to the child of abuse at his father’s hands and further, failed to appreciate that the mother was not a flight risk.
The ground further contends that the trial judge failed to give weight to evidence that the father lied to authorities having the child’s care and failed to comply with court orders requiring him to give her information about the child.
In a final contention in this ground the mother said:
Watts J wrongly based the decision to grant [the father] sole parental responsibility on a wrongful prejudgment that [the child] would be ordered to live with [the father] at a final hearing based on the interim status quo…
As can be readily discerned, the bases for the challenge in this ground rest on contentions contained in earlier appeal grounds and which are as yet undetermined by the trial judge. . To that extent the ground largely fails by reason of the failure of the underlying contentions.
To the extent that the ground relies on matters of assertions in the mother’s evidence, again we note that until a final hearing in which the allegations of the father lying are explored and findings of that are made, they remain allegations and do not form a proper basis for challenge of his Honour’s order.
Finally we turn to the assertion that the trial judge prejudged the outcome of the final hearing when he made the order for sole parental responsibility in the father.
His Honour’s reasons set out the matters considered by him in coming to the decision and he concluded:
99. On the face of it, it is clear that the parties are in high conflict. There is no indication that they can reasonably be expected to reach a mutual decision in relation to medical and schooling matters in relation to [the child]. It is the mother’s strongly held view that the child’s treating mental health professionals have misdiagnosed the child’s disorders. As I indicated above, the mother is firmly of the view that [the child’s] diagnosis of ADHD by [the child’s] treating medical practitioner, Dr [F], is flawed.
100. I am being asked to make an order that hopefully will only be good for about twelve months or so. Somebody has to have the ability to make final decisions in relation to serious issues relating to [the child’s] health and education and any other important longer term decisions that needs to be made in respect of his welfare.
101. [The child] has lived with his father since December 2010. Given that, based on this decision, [the child] will continue to live in his father’s care for most of the time, the father should be that person. …
The mother pointed to paragraph 101 as being the foundation for the asserted prejudgment of the case.
We reject the assertion that his Honour prejudged the final outcome. It is overwhelmingly clear from the quoted passages and from his Honour’s reasons as a whole that he was considering interim measures. No rational reading of paragraph 101 either alone or in context of the balance of the reasons would support the view for which the mother contends.
The mother has failed to make out her grounds of appeal and the appeal will fail.

Application to adduce further evidence

As we have already indicated, the mother sought and was granted leave to make an application to adduce further evidence on appeal. The evidence sought to be adduced is the notice of risk of abuse document produced by H Public School and the records from AC..
This document was not produced to either Loughnan or Watts JJ, it came to the mother’s possession sometime after the hearing before Watts J.
The proposed evidence does not meet the criteria for the admission of further evidence on appeal (see CDJ v VAJ (1998) 197 CLR 172). It neither demonstrates that, if accepted, the decision under appeal is erroneous or had it been before the trial judge would have produced a different result.
The application will thus be dismissed.

The mother’s application for leave to appeal against procedural orders made on 15 August 2013 (EA 128 of 2013)

As we have indicated the mother sought leave to appeal against procedural orders made by Watts J on 15 August 2013.
The orders are clearly aimed at preparing the matter for trial. The mother took issue with the orders relating to the filing of her trial affidavit. We set out the terms of the order:
Order 3. By 4pm 10 October 2013 both the parents each file and serve one affidavit from each of them respectively setting out the evidence upon which they seek to rely. That affidavit is to follow the exact sequence of headings in Exhibit 47 and contain all the evidence they each wish to give under each heading.
This perfectly orthodox order which required compliance with Rule 15.06 of the Family Law Rules 2004 and Division 12A of the Act led to the mother filing an appeal. Although the order, being interlocutory, required a grant of leave to appeal, the mother sought no such leave but rather filed a notice of grounds of appeal. We will treat the grounds of appeal as being matters relevant to the grant of leave.
As we have already indicated, when his Honour earlier made directions for the preparation of the matter for trial, a trial that did not eventuate, he made a different style of direction for the filing of affidavits which enabled the mother to rely on affidavits filed in various interim proceedings. However, when he came to make the trial directions of August 2013, there had been further interim applications and his Honour made directions which enabled a rational and contained presentation of the evidence.
In appeal ground 1 the mother contends that she was not afforded procedural fairness in the making of the orders because all of her appeals against earlier interim order have not been heard and determined. Principally, the mother contends that she will be prejudiced if the hearing is prepared without the assistance of expert opinion on the issue of the asserted abuse of the child. We pause to note that pursuant to earlier orders, an expert has been appointed to consider the issue of abuse and other issues in the case and appointments made for the parties and child to attend on that expert. However, we understand that the mother does not regard that appointed expert as having the necessary expertise to offer an opinion on those matters, and despite having unsuccessfully appealed the order appointing the expert, continues in this ground to so assert.

In any event, that interim appeals have been filed and not heard do not support the granting of leave to appeal.
In ground 2 the mother contends that she is prejudiced by having to prepare a trial affidavit at about the same time as she is due to stand trial in the District Court on criminal charges relating to her removal of the child from Australia.
As we indicated to the mother during oral argument, that is not a proper basis for appeal. The simple expedient of making an application to the trial judge for an extension of time in which to file the affidavit was the appropriate course for her to take.
Aligned with ground 2 is ground 3 in which the mother argues that she was not afforded procedural fairness because the order required her to rely on only one affidavit rather than rely on all of the affidavits filed in the proceedings to that point. As we have indicated, the Rules of Court make it abundantly clear that affidavits filed in interim hearings are not to be relied on in a final hearing. However, it was apparent to us that the mother understood that there was no restriction on what information could be contained in the trial affidavit and that she was at liberty to include all or any of the evidence from the earlier affidavits. Her complaint was that she had no time to collate the information into one affidavit given her impending criminal trial.
It was conceded by the mother that she was, at the time of the appeal and for some time before that, been in receipt of a grant of legal aid but had declined to take up that offer. Had she done so, she would have the assistance required to compile the trial affidavit. That she has not done so significantly undermines her argument that she was unable to prepare the ordered affidavit. Finally, the mother complained of a lack of procedural fairness to her in the requirement that the affidavit address identified issues in a particular order. The mother complained that in so doing the trial judge was “limiting the type of evidence to particular categories; prejudging the significant issues when I may have evidence that Watts J is unaware of and that I consider significant and relevant to a final hearing that does not ‘fit’ exactly within Watts J’s predetermined categories.”
To so interpret the order reflects, in our view, a wilful determination not to understand the order.
In order to warrant a grant of leave to appeal, the mother must demonstrate that there has been an error of principle and/or a substantial injustice to her: (see Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc. (1981) 148 CLR 170 at 177)
None of the matters raised by the mother in relation to this appeal demonstrates an error of principle or substantial injustice. Leave to appeal was thus refused.

Costs

The father through his solicitor sought an order for costs against the mother.
The appeal has been wholly unsuccessful and, although the mother submitted that she has no income other than a Newstart allowance, we are nevertheless persuaded that it is appropriate that she pay the costs of the father.
The father sought an identified amount of costs, $3,800.
The amount sought for costs is reasonable and we will order that the mother pay those costs.

I certify that the preceding one hundred and sixty-four (164) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 1 November 2013.

Associate:

Date: 1 November 2013