Tome & Tome
[2021] FamCA 589
•11 August 2021
FAMILY COURT OF AUSTRALIA
Tome & Tome [2021] FamCA 589
File number(s): PAC 842 of 2018 Judgment of: FOSTER J Date of judgment: 11 August 2021 Catchwords: FAMILY LAW – PARENTING – Where clear evidence of family violence perpetrated by the father – where father acknowledges same – where violence relationship based – where no assertion of violence in the years since separation – where the father has engaged in appropriate therapeutic intervention – where mother exhibits significant anxiety in relation to the father and the paternal family – where mother makes assertion that paternal grandfather sexually abused the eldest child – where finding as to no unacceptable risk – where issue as to equal shared parental responsibility – where in best interests of children for such order to be made – where father has had professionally supervised time for some years – where such supervision should cease – where appropriate for father’s time with children to be extended gradually initially in presence of paternal grandmother – where significant issue as to use of alternate name for the eldest child by the mother – where mother wilfully disobeyed court orders prohibiting such use – where in best interests of child to permit continued use of name – where orders made substantially as sought by the Independent Children’s Lawyer – where orders made for written submissions as to Independent Children’s Lawyer costs. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 69ZN, 69ZQ, 69ZR, 69ZX Cases cited: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Goode and Goode (2006) FLC 93-286
Hakimi & Nasser (No. 2) [2021] FamCAFC 88
Johnson v Johnson (2000) 201 CLR 488 (7 September 2000)
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
Spencer & Spencer (No. 2) [2020] FamCAFC 108
Tong & Niem [2020] FamCAFC 27Vallans & Vallans [2019] FamCAFC 260
Number of paragraphs: 131 Date of last submission/s: 19 July 2021 Date of hearing: 21, 22, 23, 24 and 25 June 2021 Place: Parramatta Counsel for the Applicant: Mr Kearney SC Solicitor for the Applicant: Lamrocks Solicitors Solicitor for the Respondent: Genuine Legal Counsel for the Independent Children's Lawyer: Ms Shea Solicitor for the Independent Children's Lawyer: Ms Laurence of Legal Aid NSW ORDERS
PAC 842 of 2018 BETWEEN: MR TOME
Applicant
AND: MS TOME
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
FOSTER J
DATE OF ORDER:
11 AUGUST 2021
THE COURT ORDERS THAT:
1.All previous parenting orders in relation to the children, X, born … 2016, and Y, born … 2017 (“the children”), be discharged.
2.The mother and father have equal shared parental responsibility for the children.
3.The children live with the mother.
4.The children spend time with the father as follows:
(a)From the date of these Orders until 1 June 2022:
(i)With both children each Sunday from 10 am to 6.30 pm;
(ii)With Y each Friday from 10 am to 6.30 pm;
(iii)With X each Friday from after school until 6.30 pm, except during school holidays when time will commence at 10 am; and
(iv)Such time to occur in the presence of the paternal grandmother.
(b)From 2 June 2022 until … 2022 (when Y turns five):
(i)With both children each Sunday from 10 am to 6.30 pm;
(ii)With Y each Friday from 10 am to 6.30 pm; and
(iii)With X each Friday from after school until 6.30 pm, except during school holidays when time will commence at 10 am.
(c)From … 2022 (when Y turns five) until the commencement of Term 1 2023 (when Y starts school):
(i)With both children each week from 10 am Sunday until the commencement of school/pre-school on Monday;
(ii)With Y each Friday from 10 am to 6.30 pm (7.30 pm Daylight saving time); and
(iii)With X each Friday from after school until 6.30 pm (7.30 pm Daylight saving time) except during school holidays when time will commence at 10 am.
(d)From the commencement of Term 1, 2023 (when Y starts school) until the conclusion of Term 4 2023:
(i)With both children each alternate weekend from 10 am Saturday if the children are not attending Arabic school (or otherwise from the conclusion of Arabic school) until the commencement of school on Monday commencing on the first weekend of school term; and
(ii)With both children from after school until 6.30 pm (7.30 pm Daylight saving time) on Friday in the other week, except during school holidays when time will commence at 10 am on Friday.
(e)From the commencement of Term 4, 2023 until the commencement of Term 1, 2024:
(i)During school terms:
A.With both children on each alternate weekend from after school on Friday until before school on Monday commencing on the first weekend of school term; and
B.With both children from after school until 6.30 pm (7.30 pm Daylight saving time) on Friday in the other week.
(ii)During school holidays:
A.With both children for a period of four consecutive nights as agreed in writing between the parties and failing agreement from 10 am Friday until 6.30 pm (7.30 pm Daylight saving time) Tuesday on the weekend the children would usually be with the father.
(f)From the commencement of Term 1, 2024:
(i)With both children during school terms, in each alternate week from after school on Friday until before school on Tuesday;
(ii)With both children for one half of each school holiday period as agreed provided that the time in the December/January holidays shall occur on a week-about basis unless otherwise agreed in writing between the parties and in default of agreement the first half of the midyear school holiday periods commencing on the first day of such period and otherwise commencing on the second week of the December/January holidays and each alternate week thereafter;
(iii)And at such other times as agreed in writing between the parties such writing to include SMS or email communication provided always that both the mother and father are at liberty to attend on occasions significant to the welfare of the children including their education, religious education, sport and extracurricular activities provided that both shall be at all times respectful and courteous to each other.
5.That, in relation to the child, X, the father be at liberty to use the forename “X” and the mother be at liberty to use the forename “H” to refer to the child and both parents be and hereby are restrained from correcting, chastising or criticising either of the children in relation to their use of either name, and both parents shall use their best endeavours to ensure that no third party corrects, chastises or criticises either of the children in relation to their use of either name.
6.That the father be and hereby is restrained from allowing either of the children to spend time in the presence of the paternal grandfather unless such time is substantially in the presence of the father, the paternal grandmother or other adult over the age of 18 years.
7.That for the purpose of changeovers other than at school, unless otherwise specified in these orders, changeovers shall be effected as agreed in writing by the mother and father and in default of agreement shall be effected at the McDonald’s Family Restaurant, corner of J Street and K Street, Suburb E with the mother or her nominee to deliver the child or children, as the case may be, to the father or his nominee at the McDonald’s Family Restaurant and the father or his nominee shall return the child or children to the mother or her nominee at the McDonald’s Family Restaurant at the conclusion of time with the children.
8.That absent agreement as to the costs sought by the Independent Children’s Lawyer (“ICL”) each of the parties file and serve written submissions within 14 days from this date with judgment thereafter reserved to chambers provided always that in the event of agreement the ICL is at liberty to forward to the Court in chambers a minute of proposed consent orders to be made in chambers.
9.Pursuant to section 65DA(2) 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 are set out in Annexure “A” attached hereto and these particulars are included in these orders.
10.The matter be removed from the active pending cases list.
11.All subpoenaed documents produced and all exhibits tendered in these proceedings, be returned at the expiration of one calendar month unless an appeal is lodged.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Tome & Tome has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
FOSTER J:
These are parenting proceedings relating to two children who at trial were age five and nearly four. The relationship of their parents was one marked regrettably by incidents of aberrant family violence perpetrated by their father.
At trial the applicant father was aged 31 and the respondent mother nearly 29.
The relationship was short with marriage seeing the commencement of cohabitation in April 2015. The parties lived with the father’s parents until November 2015 while renovating the father’s home across the road. The parties separated in October 2017 when the youngest child was aged only one month old.
After separation the father commenced these proceedings in the Federal Circuit Court of Australia in February 2018 where interim orders were made in May 2018 that provided:
(a)for the father to have limited professionally supervised time with the children at his residence at which the paternal grandmother may be present but to the exclusion of the paternal grandfather;
(b)that a Single Expert Report be obtained; and
(c)it was noted that the father had attended several anger management programs and proposed to enrol in further programs.
Subsequent orders were made in September 2018 noting the mother’s residence and requiring her to notify the father of any change in residence and restraining the mother from using any name other than the child’s first birth name of X in relation to the older child. The mother had commenced using the name H in relation to the child. Otherwise, orders were made to ready the matter for trial with a callover listed for 29 January 2019.
In January 2019 the parties resolved the question of property settlement with the father to pay the mother $150,000 upon which the mother was to vacate the former matrimonial home at Suburb F. At callover the Single Expert Report had not been completed and the matter was adjourned to 11 March 2019. On that day the matter was “listed” for trial for three days on dates to be advised. Subsequently, the matter was listed for three days for hearing commencing 11 September 2019.
In the intervening period the father brought contravention proceedings asserting that the mother had failed to comply with interim orders. On 12 April 2019 the Court found that the mother had without reasonable excuse failed to comply with orders on about 15 occasions. The mother was ordered to enter into a recognisance to comply with interim orders. Trial dates were confirmed.
On 11 September 2019 when the matter was listed, inexplicably the parties sought the transfer of proceedings to this Court notwithstanding that such transfer would result in further delay in final hearing.
On 11 November 2019 this Court ordered the appointment of an Independent Children’s Lawyer (“ICL”) with such appointment inexplicably not having been made in the Federal Circuit Court. Final trial directions were made on 10 February 2020 with the matter listed for compliance on 21 May 2020.
On 27 March 2020 an updated report was requested from the single expert Dr D, clinical psychiatrist.
While awaiting the updated report from the single expert, the matter was listed for final hearing commencing 21 June 2021.
During the course of the trial on 23 June 2021 further interim orders were made, by consent, as follows:
1.That pending delivery of judgment in these proceedings by Justice Foster, the children, X, born … 2016, and Y, born … 2017 (“the children”) shall spend time with the Father as follows:
(a)Each Friday from the conclusion of X’s school (or 3.30 pm during school holidays) until 6.30 pm, and
(b) Each Sunday from 10.00 am to 2.00 pm.
2. For the purposes of Order 2:
(a) The time is to be supervised by A Family Services.
(b) The cost of supervision is to be shared equally between the parties.
(c)The parties are to arrange for the supervisor to collect the children from the Mother’s home and return the children to the Mother’s home, except on Fridays during school terms.
(d)On Fridays during school terms, the parties are to arrange for the supervisor to collect Y from the Mother (or her nominee) and meet the Father at X’s school at the commencement of the time, and return the children to the Mother’s home at the conclusion of the time.
(e)The time on Fridays is to be spent in the Suburb E area at a location(s) agreed between the Father and A Family Services only.
3.That, subject to Order 5, members of the paternal family, including the Paternal Grandmother, the Father’s siblings and their immediate families, are permitted to be present during the children’s time with the Father, and for the purposes of this order, each party shall provide express consent to A Family Services by no later than close of business on Friday 25 June 2021. That in the event that either party does not provide such consent as required, this Order shall be sufficient authority for A Family Services to act in accordance with these Orders.
4.That, on a without admissions basis, the Father is restrained from bringing the children, or either of them, into contact with the Paternal Grandfather.
5.The both parties have leave to provide A Family Services with a sealed copy of these Orders.
The Trial
At trial the applicant father relied on:
(a)his primary trial affidavit filed 14 April 2020;
(b)his updating affidavit filed 2 June 2021;
(c)the affidavit of the paternal grandmother filed 14 April 2020;
(d)the affidavit of his treating psychologist Ms V filed 14 April 2020;
(e)the affidavit of the paternal grandfather filed 14 April 2020.
At trial the father identified the issues for determination as follows:
(1)Parental responsibility – the father seeking an equal sharing and the mother sole parental responsibility;
(2)Time between the children and their father – the father seeking a progression of such time, including the lifting of supervision, and the mother seeking limited supervised time until 2023 and thereafter no orders;
(3)The change of X’s name – the mother seeking to change his name to ‘H’;
(4)Restraints directed to the paternal family – the mother seeking to prevent the father’s parents and siblings (and their spouses and children) from having any contact with the children.
Ultimately, at trial the father sought final orders as follows:
1.That the parties have equal shared parental responsibility for the children.
2. That the children live with the mother.
3. That the children spend time with the father as follows:
Stage One
3.1Commencing on the first weekend following the making of these Orders and until 1 November 2021 the father shall spend time with the children as follows:
3.1.1with Y from 10.00am to 6.00pm on Wednesday of each week;
3.1.2 with X from the conclusion of school until 6.00pm on Wednesday of each week;
3.1.3 from 10.00am to 6.00pm on Saturday each week; and,
3.1.4 at other times as agreed between the parties;
provided that in the event that Y is attending day care/preschool on Wednesday, then time in accordance with Orders 3.1.1 and 3.1.2 shall occur on the weekday upon which Y is not in attendance at daycare/preschool.
3.2Time in accordance with Order 3.1 shall occur in the presence of the paternal grandmother;
Stage Two
3.3 From 1 November 2021 until 30 January 2022 the father shall spend time with the children as follows:
3.3.1 with Y from 10.00am to 6.00pm on Wednesday of each week;
3.3.2 with X from the conclusion of school until 6.00pm on Wednesday of each week;
3.3.3 from 10.00am Saturday to 6.00pm on Saturday each week; and,
3.3.4 at other times as agreed between the parties;
provided that in the event that Y is attending day care/preschool on Wednesday, then time in accordance with Orders 3.3.1 and 3.3.2 shall occur on the weekday upon which Y is not in attendance at daycare/preschool.
Stage Three
3.4 From 30 January 2022 until 3 July 2022 the father shall spend time with the children as follows:
3.4.1with Y from 10.00am to 6.00pm on Wednesday of each week;
3.4.2with X from the conclusion of school until 6.00pm on Wednesday of each week;
3.4.3from the conclusion of school on Friday to 6.00pm on Sunday each alternate week; and
3.4.4at other times as agreed between the parties;
provided that in the event that Y is attending day care/preschool on Wednesday, then time in accordance with Orders 3.4.1 and 3.4.2 shall occur on the weekday upon which Y is not in attendance at daycare/preschool.
Stage Four
3.5From 3 July 2022 the father shall spend time with the children during school term as follows:
3.5.1during school terms, from the conclusion of preschool/school on Wednesday to the commencement of preschool/school on Thursday in each week;
3.5.2during school terms, from the conclusion of preschool/school on Friday to the commencement of preschool/school on Monday each alternate week; and,
3.5.3at other times as agreed between the parties.
School holiday periods
3.6Until 3 July 2022, time in accordance with Orders 3.1 to 3.4 inclusive shall continue without interruption during each school holiday period;
3.7From 3 July 2022 the children shall spend time with the father during school holiday periods as follows:
3.7.1for up to 3 consecutive nights in each week of each of the school holiday periods at the end of Terms 3 and 4 of 2022;
3.7.2for up to 4 consecutive nights in one week of each of the school holiday periods at the end of Terms 1 and 2 of 2023;
3.7.3for up to 5 consecutive nights in one week of the school holiday period at the end of Term 3 of 2022; and,
3.7.4for up to 6 consecutive nights in each alternate week of the school holiday period at the end of Term 4 of 2023;
with such notice to be provided by the father in writing to the mother not less than 56 days prior to the commencement of such time and, failing agreement as to the nights upon which such time is to occur, such time shall commence from the conclusion of school on the day upon which school concludes for such Term holiday period (whether the children have commenced attendance at school or not) and conclude at 5pm on the last day of such period and the children shall otherwise live with the mother for the balance of the week so nominated by the father;
3.8Thereafter the children shall spend time with the father for one half of the NSW holiday periods as agreed between the parties but failing agreement for the first half of the school holiday periods in years ending in an even number and for the second half of the NSW school holiday period in years ending in an odd number save that the first two periods of Christmas school holiday periods shall occur on the basis of the children spending alternate weeks with each party.
4.That notwithstanding Order 3 above, the father spend time with the children on special occasions as follows:
4.1before the father commences spending overnight time with the children in accordance with Order 3:
4.1.1on each of the children's birthdays for a period of three hours as agreed between the parties but failing agreement from 3.00pm until 6.00pm if the children's birthdays falls on a weekday and from 9.00am until 12.00pm if the children's birthdays falls on the weekend;
4.1.2from 9.00am to 5.00pm on Father's Day;
4.1.3from 9.00am to 5.00pm on Christmas Day in years ending in an odd number;
4.1.4from 9.00am to 5.00pm on Boxing Day in years ending in an even number;
4.1.5from 9.00am to 3.00pm on Palm Sunday in years ending in an odd number;
4.1.6from 9.00am to 5.00pm Easter Sunday in years ending in an odd number; and,
4.1.7from 9.00am to 5.00pm on Good Friday in years ending in an even number.
4.2after the father commences spending overnight time with the children in accordance with Order 3:
4.2.1on each of the children's birthdays for a period of three hours as agreed between the parties but failing agreement from afterschool or 3.00pm until 6.00pm if the children's birthdays falls on a weekday or school day and from 9.00am until 2.00pm if the children's birthdays falls on the weekend;
4.2.2from 5.00pm on the Saturday immediately before Father's Day until 5.00pm Father's Day in the event that the father is not already spending with the children on Father’s Day;
4.2.3from 2.00pm Christmas Eve to 2.00pm Christmas Day in years ending in an odd number;
4.2.4from 2.00pm Christmas Day to 2.00pm Boxing Day in years ending in an even number;
4.2.5from 9.00am until 3.00pm on Palm Sunday in years ending in an odd number;
4.2.6from 5.00pm Easter Saturday to 5.00pm Easter Monday in years ending in an odd number; and
4.2.7from 5.00pm the Thursday before Good Friday until 5.00pm Easter Saturday in years ending in an even number.
5.That notwithstanding Order 3 above, the mother shall spend time with the children on special occasions as follows:
5.1in the event that the children would not spend time with the mother but for this Order, for a period of three hours on each of the children's birthdays as agreed between the parties but failing agreement from afterschool or 3.00pm until 6.00pm if the children's birthdays falls on a weekday or school day and from 9.00am until 2.00pm if the children's birthdays falls on the weekend;
5.2from 5.00pm on the Saturday immediately before Mother's Day until 5.00pm Mother's Day in the event that the mother is not already spending with the children;
5.3from 2.00pm Christmas Eve to 2.00pm Christmas Day in years ending in an even number;
5.4from 2.00pm Christmas Day to 2.00pm Boxing Day in years ending in an odd number;
5.5from 9.00am until 3.00pm on Palm Sunday in years ending in an even number;
5.6from 5.00pm Easter Saturday to 5.00pm Easter Monday in years ending in an even number; and,
5.7from 5.00pm the Thursday before Good Friday until 5.00pm Easter Saturday in years ending in an odd number.
6.That for the purpose of changeover unless otherwise specified in these orders:
6.1the mother or her nominee shall deliver the children to the father or his nominee at the McDonalds Family Restaurant, Suburb L on N Street at the commencement of the father's time with the children;
6.2the father or his nominee shall deliver the children to the mother or her nominee at the McDonalds Family Restaurant, Suburb L on N Street at the conclusion of his time with the children;
6.3where the father's time with the children commences at the conclusion of school, the father or his nominee shall collect the children from the primary school attended by the children and in the event Y hasn’t yet commenced primary school the mother or her nominee shall ensure that Y is delivered to the father at the primary school attended by X at the conclusion of school;
6.4where the father's time concludes at the commencement of school, the father or his nominee shall return the children to the primary school attended by the children and in the event Y hasn’t yet commenced primary school the father or his nominee shall deliver Y to the mother or her nominee at the primary school attended by X at the commencement of school; and
6.5for the purposes of these orders, the word "nominee" is defined to mean the grandparents of the children the subject of these proceedings or the siblings of the father and mother in these proceedings and does not include any persons or family members.
7.That each party:
7.1be and hereby is restrained from causing or permitting Y to commence to attend daycare/preschool for more than 4 days of each week until 3 July 2022; and
7.2shall use their best endeavours to seek that Y be permitted to attend her current daycare/preschool on a day other than Wednesday of each week.
8.That neither party shall denigrate the other parent, the other parent's partner or a member of the other parent's family in the presence or hearing of the children or permit any third party to do so.
9.That neither party shall enrol either child in any extra-curricular activity that requires attendance during the time that the children are in the care of the other parent pursuant to these orders without first obtaining the written consent of the other parent.
10.That the parties are restrained from the following:
10.1changing or referring to the children or either of them by any other name other than their names as stated on their birth certificates;
10.2teaching either of the children that their name is anything other than the name stated on their birth certificate; and
10.3causing or permitting any person or entity to refer to either child by any other name other than the name stated on their birth certificate.
11.That in the event of either children suffering a medical emergency requiring medical attention while living with either party:
11.1the other party is to be notified as soon as possible;
11.2the other party is to be provided with the full details of the practitioner and/or medical facility upon which the children attend as soon as possible; and,
11.3the medical practitioner or medical facility be advised that each party has access to the children's medical records and the information obtained with them.
12.That within 14 days from the date of these Orders and within 14 days of any subsequent enrolment at any school or day care the parties do all acts and things and give all authorities necessary to ensure that whichever school or day care the children may attend from time to time, that school and/or day care directly forward to both parties copies of all school reports, awards, school photograph order forms, newsletters and other written material pertaining to the children's academic and extra-curricular activities.
13.That for the purpose of communication between the parties in relation to the children's care, welfare and development the parties shall use the ‘Our Family Wizard’ App and for that purpose and within 7 days the parties shall forthwith do all acts and things necessary to register to use and thereafter to notify the other party of such registration to use such App and shall thereafter do all things necessary to both maintain a current registration to and use the App to communicate in relation to the children's care, welfare and development.
14.That the mother pay the father’s costs of and incidental to these proceedings.
The mother at trial relied on the following:
(a)her primary trial affidavit filed 15 April 2020;
(b)the affidavit of maternal uncle Mr M filed 15 April 2020;
(c)the affidavit of the maternal grandmother filed 15 April 2020;
(d)the affidavits of the mother’s treating psychologist Dr P filed 19 May 2020 and with leave 17 June 2021;
(e)the affidavit of the father’s paternal uncle Mr Q Tome filed 15 April 2020;
(f)the affidavit of the mother’s maternal uncle Mr O filed 15 April 2020.
At trial the mother sought orders:
Parental Responsibility
1.That the children namely X born … 2016 (“X”) and Y born … 2017 (“Y”) (“the children”) shall live with the Mother Ms Tome born … 1992 (“the Mother”).
2.That the Mother has sole parental responsibility of the children. Spend Time Arrangements
3. That the children spend supervised time with the Father as follows: -
(a)Prior to X’s first day of Kindergarten, the children shall spend supervised time with the Father on a two-week cycle from 10:00am until 12:00pm:
(i) Wednesday of Week 1;
(ii) Sunday of Week 1;
(iii) Monday of Week 2; and
(iv) Wednesday of Week 2.
(b)From X’s first day of Kindergarten and prior to Y’s first day of Kindergarten, the children shall spend supervised time with the Father on a two-week cycle as follows:
(i) Wednesday of Week 1, after school to 5:00pm;
(ii) Sunday of Week 1, from 10:00am until 12:00pm;
(iii) Monday of Week 2, after school to 5:00pm; and
(iv) Wednesday of Week 2, after school to 5:00pm.
(c)From Y’s first day of Kindergarten, the time arrangements to be reassessed, in accordance with Order 6.
4.That the supervision shall be provided by R Contact Centre. Both parties must contact and comply with any reasonable steps to facilitate this supervision.
5. That, if R Contact Centre is unavailable;
(a)The supervised time shall occur at one of the following locations, unless agreed to by both parties in writing:
(i) S Playcentre Suburb T,
(ii) McDonalds Suburb T, and
(iii) Suburb T Shopping Centre.
(b)The supervision shall be provided by A Family Services, or any other supervision service agreed to by both parties, and that the Father shall pay the fees for this supervision service and any location fees payable in relation to the supervised spend time arrangements.
(c)In the event that the parties cannot agree on a supervision service, the Mother shall provide the Father with the names and contact information of three supervision services and the Father shall select one supervision service within seven (7) days. The Father shall pay for the fees for this supervision service and any location fees payable in relation to the supervised spend time arrangements.
Future Spend Time Arrangements
6.Five months prior to Y’s first day of Kindergarten, the parties shall attend mediation to reassess the spend time arrangements. To affect this:
(a) The parties shall agree on a mediator to facilitate this mediation.
(b)But failing agreement, the Mother shall provide a list of three mediators to the Father, and the Father shall select one of the three offered mediators within seven (7) days.
(c) The cost of the mediation shall be paid for by the Father.
X’s Name
7. That Order 6 made on 18 September 2018 be discharged.
8.That the Mother is permitted to change the child’s first name, X, born on … 2016, to H.
9. That the parties be restrained from the following:
(a) Changing or referring to X by any other name than “H”;
(b) Teaching X that his name is not H;
(c) Teaching X that his name is “X” or any other name; and
(d)Permitting any third party to refer to X by any other name other than “H”
10.That the immediate paternal family have no contact with the children including:
(a) The grandparents;
(b)The uncles and aunties and their partners and their children respectively.
Ultimately, in final submissions the mother provided a more focused proposed minute of orders as follows:
1.That the mother have sole parental responsibility for the children X born … 2016 and Y born … 2017 (“the children”).
2.That the purposes of the mother making major decisions for the children she shall use her best endeavours to do the following:
(a)The mother shall write to the father via the Wizard App outlining the decision she proposes to make and no later than 28 days prior to making such decision to allow the father to comment;
(b)The father shall provide his views or comments on the proposed decision within 14 (14) days; and
(c)The mother shall take into account the father’s views and comments and make the decision and inform the father of her decision.
3. That the children live with the mother.
4. That the children spend time with the Father in a two week cycle as follows:
(a) From the date of these Orders until January 2022:
(i)With both children in Week one on Sunday from 10 am to 2 pm; and
(ii) In Week two on Friday from 3.30 pm to 6.30 pm; and
(iii)Such time to occur in the presence of the Paternal Grandmother.
(b) From January 2022 until June 2022:
(i)With both children in Week 1 on Sunday from 10 am to 4 pm; and
(ii) In Week two on Friday from 3.30 pm to 6.30 pm; and.
(iii)Such time to occur in the presence of the Paternal Grandmother.
(c) From June 2022 until January 2023:
(i)With both children in Week 1 on Sunday from 10 am to 5 pm; and
(ii) In Week two on Friday from 3.30 pm to 6.30 pm; and
(d) From January 2023 until the commencement of school 2024:
(i)In Week One with both children on each Sunday from 10 am to 6 pm; and
(ii) In Week 2 on Friday from 3.30 pm to 6.30 pm on Friday; and
(e) From the commencement of school 2024 until June 2024:
(i)In Week one with both children on Sunday from 10 am until the commencement of school on Monday; and
(ii) In Week 2 on Friday from 3.30 pm to 6.30 pm; and
(iii)For the purposes of overnight time with the father, this shall proceed in the presence of the paternal grandmother for the first six occasions.
(f) From June 2024 till January 2025:
(i)In week one with both children on each alternate Saturday from 10 am if the children are not attending Arabic school (or otherwise from the conclusion of Arabic school) until Sunday 5 pm; and
(ii) In week two from 3.30 pm to 6.30 pm on Friday.
(g) From January 2025:
During school terms:
(i)With both children on each alternate weekend from the conclusion of school on Friday until Sunday 5 pm.
During school holidays:
(ii)For a period of 4 consecutive nights from 10 am Friday until 5 pm Tuesday on the weekend the children would usually be with the father under.
(h)That for the purposes of Order 4, time between the children and the father on Fridays is to be spent in the Suburb E area.
5.That, in relation to the child, X, the mother be permitted to change the child’s name on his birth certificate from “X” to “H” and the parties be restrained from correcting, chastising or criticising either of the children and/or the parents in relation to their use of either name or allowing any third party to chastises or criticise the children and or the parents in relation to their use of either name:
6.That the Father is restrained from bringing the children, or either of them, into contact with the Paternal Grandfather, X.
7. For the purposes of changeover:
(a)On Friday during school terms and before Y starts school, the Mother or her nominee will arrange for Y to be made available at U School, Suburb E so that both children will be collected together;
(b)On Friday during school terms, the father and paternal grandmother are to pick up the children from the school office (U School, Suburb E) and drop off at McDonald’s corner J Street and K Street, Suburb E NSW.
(c)At any other time, the Father and paternal grandmother are to pick up and drop off the children at McDonalds corner J Street and K Street, Suburb E NSW.
8.For the purposes of overnight time with the Father, the children are to only sleep at the Father’s residence and not the paternal grandparents home.
9.That there be a restraint on both parties from changing the children’s religion to any other religion other than Catholic.
11.That the father be restrained from stalking, intimidating, following, arranging for anyone to follow the Mother, approaching the Mothers workplace, approaching the Mothers residence or approaching the mother personally.
12.That the Father is not permitted to take inappropriate photographs of the children or allow anyone else to do so.
13.That neither party shall denigrate the other parent, the other parent's partner or a member of the other parent's family in the presence or hearing of the children or permit any third party to do so.
14.That in the event of either children suffering a medical emergency requiring medical attention while living with either party:
(a) The other party is to be notified as soon as possible;
(b)The other party is to be provided with the full details of the practitioner and/or medical facility upon which the children attend as soon as possible; and
(c)The medical practitioner or medical facility be advised that each party has access to the children's medical records and the information obtained with them.
15.That within 14 days from the date of these Orders and within 14 days of any subsequent enrolment at any school or day care the parties do all acts and things and give all authorities necessary to ensure that whichever school or day care the children may attend from time to time, that school and/or day care directly forward to both parties copies of all school reports, awards, school photograph order forms, newsletters and other written material pertaining to the children's academic and extra-curricular activities.
16.That for the purpose of communication between the parties in relation to the children's care, welfare and development the parties shall use the ‘Our Family Wizard’ App and for that purpose and within 7 days the parties shall forthwith do all acts and things necessary to register to use and thereafter to notify the other party of such registration to use such App and shall thereafter do all things necessary to both maintain a current registration to and use the App to communicate in relation to the children's care, welfare and development.
The ICL at trial proposed orders to the following effect:
(a)That the parties have equal shared parental responsibility for the children;
(b) That the children live with the Mother, and
(c)That the children spend time with the Father in a gradually increasing arrangement whereby:
(i) Formal supervision ends immediately;
(ii)Time continues in the presence of the Paternal Grandmother until 1 June 2022 and then progresses to fully unsupervised day only time;
(iii)Overnight time is introduced when Y turns five (in … 2022), commencing with one night each week and increasing to two consecutive nights each fortnight when Y starts school (in 2023) and ultimately increasing to four consecutive nights per fortnight in 2024.
(d)The ICL also proposes an order which allows each parent to use their preferred name for the child, X, but does not otherwise authorise any formal change to X’s name on his birth certificate.
Ultimately, as can be seen, the major issues were the allocation of parental responsibility and the progression of the children’s time with the father, both supervised by the paternal grandmother and unsupervised.
A Preliminary Point: Recusal
On the last of the five days of the trial, counsel for the mother made application that the Court recuse itself from further hearing the matter by reason of apprehended bias. Short submissions were made and the application was dismissed with reasons to be published concurrently with final Reasons for judgment.
Whilst the application was made without the benefit of a transcript, it appears that the complaints by the mother and the Court’s responses were:
(a)An assertion that the Court on day one at the beginning of the trial made a comment that the parties “need to accept that the father’s time with the children would proceed to unsupervised time”:
During opening exchanges as to the matter and before the commencement of evidence there was the following exchange between the Court and counsel for the mother:
HIS HONOUR: All right. Well, Mr Kearney and Mr O’Reilly, there are lots of discreet issues. I’m not sure how many you might be able to resolve. Is there an issue about parental responsibility?
MR O’REILLY: There is, your Honour, yes.
HIS HONOUR: Is there. And of course, there is no suggestion these children won’t have an ongoing relationship with their father on your case; is that right? Just to be under certain conditions.
R O’REILLY:Your Honour, that’s correct. My client’s case is that the children’s time with the father ought remain supervised.
HIS HONOUR: And how does that end?
MR O’REILLY: Well, my client’s proposal is that there is a review mechanism.
HIS HONOUR: Not in the Court. There won’t be a review mechanism in the Court. Once I have finished it, it’s finished, and you get on with your lives.
MR O’REILLY: Well, your Honour, the difficulty
HIS HONOUR: And as the Full Court said, I can’t make an ongoing supervision order without some prospect of there being a change. In other words, I can make an order until, say, the kids are 12 and then no order at all.
MR O’REILLY: And your Honour, that’s the difficulty with this case: that we’ve got a three and a five year old.
HIS HONOUR: Yes. I understand that.
MR O’REILLY: They’re quite young, these children. The father has only ever had supervised
HIS HONOUR: Yes. But that’s, you know, it’s a gradual movement towards unsupervised time.
MR O’REILLY: Your Honour, I accept that in most cases that would be the general proposition, but this is a case where, on the father’s own evidence, there has been some serious episodes of family violence.
HIS HONOUR: I understand that.
MR O’REILLY: And it’s the impact of
HIS HONOUR: But he has been pottering along with supervised time now since 2018.
MR O’REILLY: And your Honour, as you would expect, there hasn’t been any issues since that time.
HIS HONOUR: No.
MR O’REILLY: We have got the concerns of
HIS HONOUR: And the kid’s relationship with their father has got better and better over the years.
MR O’REILLY: That’s correct.
HIS HONOUR: So why would the parties not have equal shard parental responsibility in relation to just those major issues?
MR O’REILLY: Well, your Honour, there is issues in relation to these parties communicating with one another, there is issues in relation to family violence
HIS HONOUR: But I’m talking – well, we’re talking about situational family violence, and maybe a bit of issues after separation, clearly, but we’re talking about the issues that are covered by long time parental responsibility. Where are there going to be issues between the parties into the future?
MR O’REILLY: Well, your Honour
HIS HONOUR: Like schooling. Is the five year old at school this year? Sorry. I forget.
MR O’REILLY: Yes.
HIS HONOUR: What school is that?
MR O’REILLY: U School, I think it is.
HIS HONOUR: And not an issue about Catholic education?
MR O’REILLY: No, your Honour.
HIS HONOUR: No issue about religion?
MR O’REILLY: No.
HIS HONOUR: No issue about moving anywhere miles away from anywhere that would frustrate contact?
MR O’REILLY: No, your Honour.
HIS HONOUR: Really no issue about a name. Like, you know, a Christian name is a Christian name. So no issues about health. What are they going to argue about?
MR O’REILLY: Your Honour, I don’t
HIS HONOUR: You can talk to your client about that.
MR O’REILLY: Thank you, your Honour.
HIS HONOUR: And there has been lots of things said about – in fact, to some extent where there is significant conflict, equal shared parental responsibility is recommended to avoid it being used as a weapon by a complaining parent against the other.
MR O’REILLY: Certainly.
HIS HONOUR: But you can talk to Ms Shea about that. All right. Well, maybe we can nut down some of – like, what we need to do – like, the three year old is very young and, of course, some prognostications wouldn’t even suggest overnight time. But I’m not sure, at that age, but that’s a little way off, I would think, in any event in relation to both if that happens. So I will leave you in the general hands of Ms Shea.
MR O’REILLY: Thank you, your Honour.
At no time was it suggested that the father’s time would “proceed” to unsupervised time. Counsel for the mother was alerted to the issues that arise in terms of long term supervision.
(b)That subsequently the Court proposed a form of order for the parties to consider:
Notwithstanding that counsel for the mother was unable to refer to what specific form of order was proposed by the Court for the parties’ consideration, counsel for the mother acknowledges that the same were preliminary comments.
(c)That the Court during the father’s cross examination made comments “minimising” the impact of family violence: “these events occurred five years ago”:
The following exchange transpired in relation to the complaint:
MR O’REILLY: Your Honour during the cross-examination of the father, what we would contend is that your Honour has made a number of comments with the effect of minimising the impact of the family violence. And those comments included, “these events occurred five years ago”
HIS HONOUR: Sorry, you mean minimising the impact of family violence. Yes. So one was?
MR O’REILLY: Your Honour’s comments were, “these events occurred over five years ago”.
HIS HONOUR: Sure. Yes. So that’s a temporal comment as to when it happened. What else do you want to say?
MR O’REILLY: That there hasn’t been an incident in over two years.
HIS HONOUR: Yes.
The comment was simply an observation as to the temporal issue as to the issues of violence.
(d)That the Court made comment as to the mother’s affidavit evidence “being verbose” and “had recollection of conversations as if she had made contemporaneous notes”;
After the submission the following exchange took place –
MR O’REILLY: Your Honour, during the cross-examination of the father, your Honour made a number of comments in relation to the mother’s evidence. That her affidavit, in effect, that her affidavit was verbose and had a recollection of conversation as if she had made contemporaneous diary notes.
HIS HONOUR: So this is during the cross-examination of the father?
MR O’REILLY: That’s correct.
HIS HONOUR: Comment re: the mother’s affidavit.
MR O’REILLY: Your Honour, these comments were made one, before the mother had given – had been cross-examined.
HIS HONOUR: So what did I say?
MR O’REILLY: Your Honour made a number of comments in relation to the – what you referred to that the mother would have made contemporaneous diary notes.
HIS HONOUR: No. What did you say I said about the affidavit?
MR O’REILLY: That it was verbose.
HIS HONOUR: That it was verbose. Well, I wouldn’t have used that word.
MR O’REILLY: That’s what I was saying. We would contend that your Honour’s comments
HIS HONOUR: So I said the affidavit was?
MR O’REILLY: That the mother – in respect of the comments made by the mother and in particular it was the incident – I can take your Honour to the paragraph in particular. But the effect of it is, your Honour, that your Honour was making a number of comments in relation to the mother’s affidavit at about paragraph – commencing 109. This is the incident in February 2017 when the parties attended – the all the paternal family and the paternal family
HIS HONOUR: So this is during her evidence, is it?
MR O’REILLY: No. During the father’s evidence.
HIS HONOUR: The father’s evidence. When these were being put to him.
MR O’REILLY: That’s correct. And your Honour made a number of comments in relation to that the mother must have kept some contemporaneous diary notes.
HIS HONOUR: Yes. Well, that was a question.
The comment was made as a remark as to the particularity of the mother’s affidavit after such a long time since the incidents recounted therein.
(e)That at the conclusion of the father’s evidence the Court made comment “that it is his case at its weakest”:
The following exchange took place after the submission was made:
MR O’REILLY: Your Honour made a comment in respect of – at the conclusion of the father’s case, his case is at its weakest and it was
HIS HONOUR: I made a general comment about some concepts in relation to evidence that is generally considered that a parties’ case is at its weakest at the end of cross-examination.
MR O’REILLY: That’s correct, your Honour.
The comment was simply as to a generally accepted evidentiary position. Nothing more.
(f)That the Court made comment that if the father’s psychologist was required for cross examination it may give rise to an issue as to costs of attendance:
After the submission the following exchange took place:
MR O’REILLY: Thank you, your Honour. Your Honour also raised, in relation to a request – for Ms V to be present for examination. And in respect of that, your Honour raised issue of costs being sought in the event that Ms V was required.
HIS HONOUR: Well, that’s a normal practice.
MR O’REILLY: Well
HIS HONOUR: If you require a witness for cross-examination at significant expense to the other party, and there’s no utility in cross-examination, there’s always the spectre of costs.
MR O’REILLY: And, your Honour, where the issue lies is that when it was told by – that the – Dr P was required for cross-examination, there was no such comments made in relation to that. The comments were directed at the wife
HIS HONOUR: I don’t think I ever inquired at all whether
MR O’REILLY: and her request for Ms V.
HIS HONOUR: Dr P was required for cross, he just turned up. I asked that question about V in the context of the father’s witnesses; I didn’t make a similar inquiry about Dr P
MR O’REILLY: That’s
HIS HONOUR: I just assumed he was coming.
MR O’REILLY: And that – therein lies one of the wife’s contentions, your Honour. That you make a contention in respect of the wife’s case
HIS HONOUR: Right. So request for standing. So I
MR O’REILLY: and a request for
HIS HONOUR: reminded the parties about costs of doing so. If there was no ultimate utility in the mental health practitioner being called….
(g)That the required further Minute of Order from the mother setting out her proposals for the children’s time with the father beyond when the youngest child was in kindergarten:
The request arose out of the exchange referred to in (a) above seeking a more focused appropriate proposal than the one placed before the Court that saw two parties in conflict required to participate in mediation as to further or any time for the children with the father once both children were in kindergarten. The nonsense of that proposal was readily apparent. After the submission the following exchange took place:
MR O’REILLY: In respect of the orders sought by the mother, in particular the orders which she proposed provided for supervised time to continue. Your Honour directed that the mother prepare a minute of order. That minute of order
IS HONOUR: She didn’t provide an order that supervised time continue. She provided a minute that was prepared, probably, by you, Mr O’Reilly or
MR O’REILLY: Your Honour.
HIS HONOUR: your instructor that suggested that any order for time would end when both children were at kindergarten.
MR O’REILLY: Well, your Honour, that’s not what the effect of that order is. The effect is that the supervision would continue
HIS HONOUR: No, mister – because then there’s an order for mediation
MR O’REILLY: That’s correct, your Honour.
HIS HONOUR: sought.
MR O’REILLY: There’s no order ceasing the supervision.
HIS HONOUR: But there’s no order for time.
MR O’REILLY: And that’s correct, your Honour. That’s what one of the complaints is, your Honour, that whilst the mother was giving evidence, your Honour directed her to prepare a minute of order.
HIS HONOUR: Yes. Because the
MR O’REILLY: Your Honour’s comments
HIS HONOUR: minute of order that was provided to me was a minute of order that was just a nonsense.
MR O’REILLY: Well, and again, your Honour
HIS HONOUR: Don’t you understand that, Mr O’Reilly?
MR O’REILLY: Your Honour
HIS HONOUR: Like, you and your instructor are experienced practitioners. This is a superior court of jurisdiction running parenting proceedings, and we don’t expect to be given minutes of order that are orders that would never be made by this court.
MR O’REILLY: And, your Honour, that’s ultimately where you may form that view. But to put that proposition to my client while she’s been in the middle of cross-examination
HIS HONOUR: Well, she’s being asked about the orders sought by her.
MR O’REILLY: And, your Honour, that’s what I’m – your Honour, I’m a creature of my instructions. You’re well aware of that.
(h)That during the mother’s cross examination the Court commented on the mother’s appearance and enquired as to her health:
After the submission the following exchange took place –
MR O’REILLY: Ands I think Mr Kearney was still in cross-examination, your Honour commented on the mother’s appearance. And
HIS HONOUR: Sorry, I was enquiring about her health.
MR O’REILLY: Well, with respect, your Honour, your Honour, without any notice or any concerns to the parties, put to the mother to enquire whether she had taken any medication
HIS HONOUR: Well, isn’t that something that I should do? Because she was struggling to answer questions.
MR O’REILLY: And, your Honour, when the mother responded to you that
IS HONOUR: Although I note that her appearance on the subsequent two days has been much more lively.
MR O’REILLY: And, your Honour, when the mother indicated to you that
HIS HONOUR: The mother’s appearance and
MR O’REILLY: she was
HIS HONOUR: if, I think, had taken medication
MR O’REILLY: because she was a bit slow in answering the questions.
HIS HONOUR: Well
MR O’REILLY: And when the mother responded to your Honour that she was shaking and she was stressed
HIS HONOUR: I didn’t say she was shaking or she was stressed.
MR O’REILLY: No, the mother said that to you.
HIS HONOUR: Well, I don’t care what she said, you’re asking what I said.
MR O’REILLY: And, your Honour, you might not care; but the mother’s complaint is that she was shaking and she was stressed and
HIS HONOUR: Sure. And that would, you suggest, be part of a reason why my care for the mother in the witness box, a lay-observer would form the view that I wouldn’t hear and determine this matter on its merits
MR O’REILLY: No.
The Court recalls that the mother’s demeanour was of concern. She appeared slow in answering questions and appeared drowsy and pale. The question to the witness was an enquiry as to her health and ability to continue.
(i)That during the mother’s cross examination the Court commented that she may be referred to the Law Society:
In response to the submission the following exchange took place-
MR O’REILLY: And, your Honour, during the mother’s cross-examination at the end of Wednesday, your Honour remarked to the mother that your Honour may refer her to the Law Society. Again, this is – these comments occurred whilst the mother was in the witness box.
HIS HONOUR: Well, that’s in circumstances where she’s conceded – or had conceded by then – that she had blatantly disregarded orders of the court and breached her bond. And she’s an officer of this court. Now, she should understand why I make that comment; because I have an obligation in relation to that.
Nothing more need be said.
(j)That in relation to further interim orders made as to the children’s time with the father during the trial as referred to above the Court indicated that they should include the paternal family:
Following the submission the following exchange took place:
MR O’REILLY: Your Honour, at the conclusion of day 3, your Honour, again, on your own motion, sought to amend the interim parenting orders and, in doing so, your Honour, we would contend expressed your Honour’s view as to the form of those interim orders.
HIS HONOUR: Well, I’ve made them by consent.
MR O’REILLY: Well, your Honour, what your Honour indicated on the end of – conclusion of day 3, your Honour sought to include provision for all of the paternal family to include
HIS HONOUR: Well, I withdrew that contention.
MR O’REILLY: and, your Honour, but that included the paternal grandfather.
HIS HONOUR: No. I withdrew that contention
MR O’REILLY: No, that was only
HIS HONOUR: very quickly.
MR O’REILLY: And, your Honour, that was only after
HIS HONOUR: No, it wasn’t after the ICL, it was something I anticipated she was going to say, and I withdrew that saying that, of course, there’s been no evidence that would justify that, so I can’t do that. And I invited the parties to put together some orders that would see these children seeing their father, much the same as they should have been since April.
In circumstances where the mother had unilaterally stopped a significant part of the children’s time with the father, the parties were invited to confer and try to reach agreement as to amended arrangements. Later further interim consent orders were made to take effect until judgment.
It is important to establish the context in which the hearing has been undertaken. The primary proceedings before the Court are parenting proceedings and are being conducted under the provisions of Division 12A of the Family Law Act 1975 (Cth) (“the Act”).
Orders concerning parental responsibility, with whom children will live and arrangements for spending time with parents are parenting orders which are determined in accordance with the provisions of Part VII of the Act.
The Court is required to determine arrangements having regard to the best interests of the subject children by considering a series of principles, objects and considerations identified in Part VII.
The principles for conducting child related proceedings, which includes applications for parenting orders, are identified in Division 12A of Part VII. Section 69ZN, sets out the principles. In s 69ZQ the general duties imposed upon a judge required to give effect to s 69ZN are identified. Section 69ZR then provides that the Court has the power to make determinations, findings and orders at any stage of the proceedings.
The Court’s powers and duties are the subject of s 69ZX of the Act:
Court's general duties and powers relating to evidence
(1) In giving effect to the principles in section 69ZN, the court may:
(a)give directions or make orders about the matters in relation to which the parties are to present evidence; and
(b)give directions or make orders about who is to give evidence in relation to each remaining issue; and
(c)give directions or make orders about how particular evidence is to be given; and
(d)if the court considers that expert evidence is required--give directions or make orders about:
(i)the matters in relation to which an expert is to provide evidence; and
(ii)the number of experts who may provide evidence in relation to a matter; and
(iii) how an expert is to provide the expert's evidence; and
(e)ask questions of, and seek evidence or the production of documents or other things from, parties, witnesses and experts on matters relevant to the proceedings.
(2)Without limiting subsection (1) or section 69ZR, the court may give directions or make orders:
(a) about the use of written submissions; or
(b) about the length of written submissions; or
(c) limiting the time for oral argument; or
(d) limiting the time for the giving of evidence; or
(e) that particular evidence is to be given orally; or
(f) that particular evidence is to be given by affidavit; or
(g)that evidence in relation to a particular matter not be presented by a party; or
(h) that evidence of a particular kind not be presented by a party; or
(i) limiting, or not allowing, cross-examination of a particular witness; or
(j)limiting the number of witnesses who are to give evidence in the proceedings.
Section 69ZX gives the Court wide powers in the context of contested parenting proceedings to, as it were, get to the nub of the matter.
In Johnson v Johnson (2000) 201 CLR 488 (7 September 2000) the plurality (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) said:
11.... It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
12.That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice. “If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision”. The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”.
13.Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of “the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case”. Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.
In Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 (7 December 2000), the plurality of the High Court (Gleeson CJ, McHugh, Gummow and Hayne JJ) said:
6.Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer (emphasis added) might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle......
8.The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an ‘interest’ in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed...
The fair minded lay observer
Kirby J said in Johnson v Johnson (supra):
“The fictitious bystander and matters that lawyers know”
[46]If a court of appeal were deciding an allegation of prejudgment for itself, according to its own knowledge and standards, a number of considerations might be taken into account in a case such as the present:
1.Appellate judges realise that most adjudicators strive to be independent and impartial and to make adjustments (so far as they can) for factors of which they are aware which might impact on their decision-making. By their training and experience, most such adjudicators are conscious of the high expectations imposed upon them.
2.Whatever may have been the tradition in earlier times, opinions favouring silence on the part of an adjudicator during a hearing (which is the surest means of avoiding most allegations of prejudgment) are now seen as carrying risks of an even greater injustice. Unless the adjudicator exposes the trend of his or her thinking, a party may be effectively denied justice because that party does not adduce evidence or present argument that could have settled the adjudicator's undisclosed concerns. A frank dialogue will commonly be conducive to the avoidance of oversight and the repair of misapprehensions. Uninformed members of the public are doubtless sometimes surprised by the robust exchanges which take place in court, especially between a judge and experienced lawyers. But judges and other adjudicators and lawyers know that such dialogue can have great value.
3.Changes that have come about in the administration of justice, including the increase in the number of trials by single judges, have also required, to some extent, an adjustment to the rules of reticence in judicial observations that may still be appropriate where trials, criminal or civil, are conducted before a jury. One of the reasons for such changes has been the desire to increase the efficient management of the trial process. Yet it is in that context that the expressions of preliminary and tentative views may sometimes appear to an outsider to indicate prejudgment. Although some adjudicators may be hard to shift from tentative opinions, lawyers know that, in most judicial decision-making, the process is a continuous one. Preliminary inclinations do change.
4.The adversary system depends on vigorous interaction not only adjudicator and those persons. Where the parties are represented by trained lawyers, the latter can be taken to be aware of (and presumed, if necessary, to have explained to their clients) the character and purpose of tentative opinions that guide the direction of the trial and encourage its proper focus. No rule of law should be adopted in relation to disqualification for prejudgment which unreasonably undermines, or is fundamentally inconsistent with, that system. (Footnotes omitted)
In Johnson v Johnson (supra), the plurality observed that:
It must be remembered that the person being observed is a “professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”...... Whilst the fictional observer, by reference to whom the test is formulated, is it not to be assumed to have a detailed knowledge of the law, or of the character or ability of the particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice.
The Full Court recently in Tong & Niem [2020] FamCAFC 27 said as to the hypothetical observer at [20]:
20.As to the characteristics of the hypothetical observer, in Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [232] the New South Wales Court of Appeal said:
… [T]he hypothetical observer is taken to be a rational person who is neither complacent nor unduly sensitive or suspicious and to be someone who is aware of the oath or affirmation taken by judges and their judicial obligations more generally.
21.The hypothesised observer is not “unaware of the way in which cases are brought to trial and tried” (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at [177]). Further, before forming a view about the existence of apprehended bias, the hypothesised observer would take the trouble to inform him or herself (but without the level of knowledge of a lawyer) of at least the basic considerations needed to come to a fair assessment (Johnson [53]).
As to the issue of judicial activism the Full Court continued to say:
22.Such a person would understand that modern case management techniques can see a judge actively involved in the conduct of cases long before the case comes to judgment (Johnson [124]). And, that “[j]ust as the judge should, to a proper extent, listen, so the judge should, to a proper extent, express any tentative views” (Antoun v The Queen (2006) 224 ALR 51 (“Antoun”) at [32]). Where these views are “[c]ouched appropriately, at the proper time and in due sequence”, no reasonable apprehension of bias will arise (Antoun [27]). Even when the views are expressed using strong and forthright language; preferably where parties are legally represented and counsel are able to respond in similar fashion (as is the situation here), the judge may continue to hear the case. However, “[a] line is drawn between forthright and robust indications of a trial judge’s tentative views on a point of importance in a trial and an impermissible indication of prejudgment” (Antoun [29]).
Then later the Full Court observed at [38]:
In Anderson v National Australia Bank [2007] VSCA 172 at [95], Nettle JA (as his Honour then was) said “a trial judge like any judge should strive to avoid truculence and discourtesy. But in the scheme of things, it is almost inevitable that there will be some of it in any hard fought cause”.
The Court’s remarks in the present proceedings represent an ongoing active engagement in difficult parenting proceedings. In summary, the complaints made either singly or as a whole could not lead the hypothetical lay observer to conclude that the Court would not bring an impartial mind to the determination of these difficult parenting proceedings. Indeed, as remarked by Aldridge J in Spencer & Spencer (No. 2) [2020] FamCAFC 108 at [9]:
The test is not satisfied by the assertion that the mother, as a self–represented litigant, has the perception of partiality or that she considers that an objective bystander would come to such a view. It is an objective test with the hypothetical bystander not being involved in the proceedings…
The application for disqualification is dismissed.
The Parenting Issues
The parameters of the parties’ relationship are marked by conflict and family violence.
The evidence adduced at trial descended into the minutiae of the parties’ relationship and what was clearly conflict and distrust between two family groups.
Both parties were cross examined at length. The father was forthright in his evidence revealing significant insight into his aberrant behaviour in the relationship. He readily acknowledged his behaviour and the effect it may have had on the mother. He was frank and open with the Court notwithstanding his frustration at the more recent conduct of the mother. The mother, on the other hand, was evasive and at times obtuse in her responses. She on occasions was clearly demonstrated not to be a witness of truth, particularly in relation to issues regarding school enrolment and the use of the alternate name for the eldest child. She conceded in evidence that she wilfully and intentionally disregarded and disobeyed orders of the Court demonstrating her lack of respect for the Court’s authority. She had complete disregard of her responsibilities as a legal practitioner and her obligations as an officer of the Court. Overall, her evidence when in conflict with that of the father, unless properly corroborated, is not accepted. Her evidence is, otherwise, to be treated with great circumspection. It was properly submitted by the father’s counsel that:
The mother in her oral evidence was untruthful, evasive and combative. Further the mother time and again embellished her evidence to portray the father and his family negatively. Even when the inconsistencies and lack of logic in her evidence were pointed out, the mother could not let go of her exaggerated negative views.
By reason of the orders proposed by the parties and the ICL, in particular, the orders now sought by the mother who has resiled from ongoing professional supervision in favour of supervision by the paternal grandmother for short periods (and thus abandoning any long term issue as to risk to the children represented by the father), the Court is required to look prospectively as to orders in the best interests of these young children.
However, a short overview of the parties’ relationship is of some utility.
The parties’ relationship was short but during their cohabitation the conduct of the father exhibited significant lack of emotional regulation. In particular, the father early in the relationship assaulted the mother and was threatening with a blowtorch and petrol, punched a wall, punched the dashboard of the parties’ car, sent text messages representing an asserted threat to the maternal grandmother, is alleged to have communicated to a third party a threat to kill the mother, stepped on a child’s toy in frustration and punched a wall near the mother’s head.
The last incident lead to final separation and the commencement of police proceedings against the father. Exhibit “U” reveals that the father was charged with Reckless Damage to Property and Common Assault. The father promptly pleaded guilty and on 14 November 2017 was fined $800.00 and placed on a good behaviour bond for nine months conditional on completing an anger management course. A Final Apprehended Domestic Violence Order (“ADVO”) was put in place for 12 months and expired in November 2018.
The father, after the Court proceedings commenced, commenced engagement with his treating psychologist Ms V and in September 2018 completed an anger management course.
After interim orders were made, the father’s supervised time with the children commenced in May 2018.
However, certain events took place thereafter that have caused the mother to have concerns about the father’s parenting capacity and emotional regulation. On several occasions the father engaged the eldest child in play with a blowtorch. This was done in the presence of the professional supervisor who took no issue with the conduct, it being duly included in her reports. The mother, however, unilaterally suspended the father’s time with the children.
Otherwise, when the mother left the former matrimonial home after her property payout, the father engaged private investigators to locate her residence. The father, in hindsight, acknowledges that such conduct was inappropriate and caused the mother distress.
The unilateral suspension of time was the subject of the father’s contravention application in March 2019. The mother was found to have breached orders without reasonable excuse as referred to above. Supervised time continued without incident or complaint thereafter until early 2021 when the eldest child commenced school thus frustrating midweek time provided for. Without any effort to restructure time appropriately, the mother did nothing other than comply with that part of the orders that provided for weekend time. Thus impasse led to further orders made during the course of the trial as referred to above.
Subsequent to the commencement of supervised time, there have been several hundred occasions of time professionally supervised. The mother readily acknowledges that the reports are reflective of a close and loving relationship developing between the father and the children, yet she settled on any small incident or happening in an attempt to criticise the father notwithstanding no concerns expressed by the professional supervisor.
The evidence supports the conclusion that the father has taken positive and appropriate steps to address his behaviour. His evidence was frank, concessional and thoughtful on this issue. He was in that regard supported by the single expert and his treating psychologist Ms V. There have been no incidents of violence since separation in October 2017. The father's acceptance of his aberrant conduct, his respectful dealings with A Family Services, his behaviour during supervised time and the children's strong relationship with him provide ample evidence that the children will benefit from their continuing relationship with him.
The additional considerations: s 60CC(3)
Section 60CC(3) sets out the additional considerations:
a)Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
b) The nature of the relationship of the child with:
i) Each of the child's parents; and
ii)Other persons (including any grandparent or other relative of the child);
c)The extent to which each of the child's parents has taken, or failed to take, the opportunity:
i)To participate in making decisions about major long-term issues in relation to the child; and
ii) To spend time with the child; and
iii) To communicate with the child;
ca)The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
d)The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
i) Either of his or her parents; or
ii)Any other child, or other person (including any grandparent or other relative of the child);
with whom he or she has been living;
e)The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
f) The capacity of:
i) Each of the child's parents; and
ii) Any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
h) If the child is an Aboriginal child or a Torres Strait Islander child:
i)The child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
ii)The likely impact any proposed parenting order under this Part will have on that right;
i)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
j) Any family violence involving the child or a member of the child's family;
k)If a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
i) The nature of the order;
ii) The circumstances in which the order was made;
(iii) Any evidence admitted in proceedings for the order;
(iv) Any findings made by the court in, or in proceedings for, the order;
(v) Any other relevant matter;
l)Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; and
m) Any other fact or circumstance that the court thinks is relevant.
The children’s ages mitigate against any consideration as to their wishes. Yet the supervision reports are clearly indicative of a warm relationship with the father and paternal grandmother.
The nature of the children’s relationships has been the subject of the discussion above. The children have secure relationships with the mother and extended maternal family. Their relationships with the extended paternal family have unnecessarily been disrupted and orders need to be made to restore same. There is no issue that the children have warm and engaged relationships with their father. The paternal grandmother has a significant relationship and role at present in the children’s time with the father. It is proposed that the same continue for a time. As contended on behalf of the father:
The paternal grandmother has been present for the majority of the spend time periods. The evidence from the supervised contact reports is that she has a warm and loving relationship with the children. The court would be satisfied having observed the grandmother giving evidence that she loves her grandchildren, has been responsive to their needs, has the capacity to step in and advise the father, that the father heeds her advice and that she understands the role she will play in the event that she is the supervisor of the father's contact. The court could place significant weight on the paternal grandmother's evidence and be satisfied that the orders sought by the father for a transition to the children spending time with the father in the presence of the paternal grandmother is in their interest.
The disrupted engagement of the father in decision making as to the children is blatant as a consequence of the mother’s conduct overshadowed by her anxiety in isolating him. He needs to be reengaged and the sharing of parental responsibility will see that happen as will his developing relationship with the children and day-to-day engagement in their lives.
The mother has primarily supported the children with the father making payments of child support that at trial were in the order of $1,000 a month.
As to change, it is properly contended on behalf of the father that “the father seeks orders which promote both parents spending time in a meaningful way with the children. This includes a gradual build up to overnight time. The father seeks to ensure that the children's right to a meaningful relationship with both parents is maintained. The change proposed on behalf of the children will enrich their lives and enable them to develop and build on their relationship with the father and will ensure that the children's emotional development and psychological health is prioritised”. However, such change must also have regard to the mother’s anxiety.
There is no practical difficulty or expenses in addressing the issues in s 60CC(3)(e) save that the parties live some distance apart. The father's orders seek to resolve the travel issue, and it is submitted that the travel requirements are not so onerous as to undermine the orders for the children’s time with the father.
As to s 60CC(3)(i) it is contended that the father has a mature and considered approach to the children. He has a good relationship with the children and seeks the opportunity via the orders sought to provide a secure base for the children. Time will tell. The mother has demonstrated little insight into the need for the children to have a meaningful relationship with the father and the paternal family. Her evidence lacks mature insight and shows a lack of reflective capacity to see the needs of the children over her own wish to estrange the father from the children. Yet her final orders sought perhaps reflect a more mature approach at the end of the trial. The father, shortly after separation, recognised that he needed assistance to change his behaviour and has taken steps to work with Ms V to effect change.
The issue of family violence is considered in the discussion above. There is no doubt that the father’s conduct had a profound effect on the mother and was a considerable contributor to her anxiety. A family violence order was put in place for 12 months in the circumstances described above. The father promptly before the Local Court conceded his conduct and appropriately entered a plea to the criminal charge. His evidence as to his remorse is readily accepted. He has engaged in appropriate interventions. There is no current Family Violence order.
It is appropriate to endeavour to make orders to avoid the matter returning to the Court. As contended by the father “it is neither in the interests of the children or of the parties for a short-term or temporary arrangement to be put into place as the orders sought by the mother would appear to propose. It is not in the children's interests to delay the extension of their time with the father. The mother has clearly demonstrated that she will not support the relationship between the children and the father. As a consequence, the Court will need to be assertive in its orders and promote the children extending their time with the father. There is no evidence before the Court that taking a slow approach will moderate the mother's position. Indeed, it was clear that despite having heard and read evidence which did not support her position the mother remained implacable in the orders she sought.
The ICL is supportive of final orders being made
Otherwise, the mother seeks injunctive relief in relation to the paternal grandfather asserting that he poses an unacceptable risk to the children. The evidence is clearly not supportive of that contention, indeed, he has been inappropriately excluded from the children’s lives since 2018. The evidence in support of this restraint is centred on two incidents where the mother says the paternal grandfather sexually abused X in front of the paternal family. As already addressed, this is a clear example of the mother at best embellishing and at worst lying to deny the children a relationship with a member of the paternal family.
Senior counsel for the father contends appropriately that “in the event that the Court makes the injunction in relation to the paternal grandfather or any member of the paternal family there is a real risk that this will entrench in the mother's mind that her position is reasonable. That cannot be in the children's best interests and, indeed, Dr D warns that the mother's unsupported and implacable view that the paternal grandfather has caused harm to X is a risk to X's psychological health. It is submitted that there is simply no evidence to support the injunctive relief sought by the mother – whether directed to the paternal grandfather alone or any other member of the paternal family. As a result, no such order ought to be entered nor is properly able to be entered for any purpose.” However, the ICL contends otherwise but for different reasons as discussed below.
As to the issue of the use of the name “H” for the eldest child, both parties at trial seemed to accept that it was now firmly entrenched. The father showed great insight into the issue in final submissions: “ In light of the evidence, and statements by the Court, the father does not press for any injunction as would prevent either parent from using such name as they may each choose when X is with them – but opposes an order altering his legal name.”
Such contention is supported by the ICL who submits:
29.In circumstances where the issue of X’s name is such an important and sensitive issue to both parents and their families, it is submitted that there should be no formal change to his birth certificate, but that each parent should be permitted to use their preferred name for X. As Dr D said in her oral evidence, X is likely to accept being called different names by each of his parents (and each parent’s extended family) as long as neither he nor Y are chastised or corrected when they use a particular name. This is reflected in the ICL’s proposed orders 5.1 and 5.2.
Such views reflect an appropriate way to resolve the issue. An Order will be made accordingly.
The ICL’s final position.
In final submissions counsel for the ICL proposed the following final orders:
(1)That all previous parenting orders in relation to the children, X, born … 2016, and Y, born … 2017 (“the children”), be discharged.
(2)That the Mother and Father have equal shared parental responsibility for the children.
(3)That the children live with the Mother.
(4)That the children spend time with the Father as follows:
From the date of these Orders until 1 June 2022:
(a) With both children each Sunday from 10 am to 6.30 pm;
(b) With Y each Friday from 10 am to 6.30 pm, and
(c)With X each Friday from after school until 6.30 pm, except during school holidays when time will commence at 10 am;
(d)Such time to occur in the presence of the Paternal Grandmother.
From 1 June 2022 until … 2022 (when Y turns five):
(a) With both children each Sunday from 10 am to 6.30 pm;
(b) With Y each Friday from 10 am to 6.30 pm, and
(c)With X each Friday from after school until 6.30 pm, except during school holidays when time will commence at 10 am.
From … 2022 (when Y turns five) until the commencement of Term 1, 2023 (when Y starts school):
(a)With both children each week from 10 am Sunday until the commencement of school/pre-school on Monday;
(b) With Y each Friday from 10 am to 6.30 pm, and
(c)With X each Friday from after school until 6.30 pm, except during school holidays when time will commence at 10 am.
From the commencement of Term 1, 2023 (when Y starts school) until the conclusion of Term 4, 2023:
(a)Each alternate weekend from 10 am Saturday if the children are not attending Arabic school (or otherwise from the conclusion of Arabic school) until the commencement of school on Monday, and
(b)From after school until 6.30 pm on Friday in the other week, except during school holidays when time will commence at 10 am on Friday.
From the commencement of Term 4, 2023 until the commencement of Term 1, 2024:
During school terms:
(a)On each alternate weekend from after school on Friday until before school on Monday and
(b)From after school until 6.30 pm on Friday in the other week;
During school holidays: for a period of 4 consecutive nights as agreed in writing between the parties and failing agreement from 10 Friday until 6.30 pm Tuesday on the weekend the children would usually be with the Father in accordance with Order 4.5.1.1.
From the commencement of Term 1, 2024:
(a)During school terms, in each alternate week from after school on Friday until before school on Tuesday, and
(b)For one half of each school holiday period provided that the time in the December 2024/January 2025 holidays shall occur on a week-about basis unless otherwise agreed in writing between the parties.
And at such other times as agreed in writing between the parties.
(5)That, in relation to the child, X, the Father be at liberty to use the name “X” and the Mother be at liberty to use the name “H” to refer to the child and:
(6)Both parents be and hereby are restrained from correcting, chastising or criticising either of the children in relation to their use of either name, and
(7)Both parents shall use their best endeavours to ensure that no third party corrects, chastises or criticises either of the children in relation to their use of either name.
(8)That the Father be and hereby is restrained from allowing either of the children to spend time with the Paternal Grandfather unless such time is supervised by the Father or his nominee (being an adult).
(9)That within 3 months of the date of these Orders the Father pay the sum of $7,915.00 to Legal Aid NSW being his contribution towards the costs of the Independent Children’s Lawyer in these proceedings.
(10)That within 3 months of the date of these Orders the Mother pay the sum of $6,265.00 to Legal Aid NSW being her contribution towards the costs of the Independent Children’s Lawyer in these proceedings. The Court NOTES the Mother has already paid an initial contribution of $1,650.00.
An order will be made for written submissions as to the costs sought by the ICL.
As to the injunctive order relating to the paternal grandfather, the ICL makes the considered submission that “in relation to the paternal grandfather, the ICL contends that the evidence does not support a finding of unacceptable risk. However, given the mother’s extreme views as to his past conduct and the risk he poses, it is submitted that the children should not spend unsupervised time with him for his own protection and to mitigate the risk of further allegations (which could have the flow on effect of disrupting the children’s relationship with their father).” Having regard to evidence and the mother’s preoccupation with the issue, it is appropriate to make such an order so as to avoid future issues.
In contrast, the orders proposed by the father are unnecessarily complex and involved. These children need simple arrangements to avoid confusion. Occasions such as birthdays and other special days will fall as they will. The parties have the ability to agree as to further or other arrangements. If they do not, then one or the other, depending on when the child’s time is to occur with each of them, may be deprived of a special day or occasion. Such consideration applies to both.
The children’s best interests as discussed above are clearly indicative of the orders being made substantially as sought by the ICL.
Orders will be made accordingly.
I certify that the preceding one hundred and thirty-one (131) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Foster. Associate:
Dated: 11 August 2021
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