Trower & Kirwan
[2022] FedCFamC2F 1230
Federal Circuit and Family Court of Australia
(DIVISION 2)Trower & Kirwan [2022] FedCFamC2F 1230
File number(s): ADC 1075 of 2014 Judgment of: JUDGE BROWN Date of judgment: 16 September 2022 Catchwords: FAMILY LAW – Parenting – application by father to resume time spending against child’s wishes – child aged 14/½ years – high conflict over many years between parents – mother has failed to take part in proceedings – orders made by consent in May 2017 – application by Independent Children’s Lawyer to summarily dismiss fathers application – child refuses to spend time with father – consideration of weight to be given to wishes expressed by child – child’s best interest – matters to be considered – no reasonable prospects of success – application dismissed Legislation: Family Law Act 1975 (Cth) Pt VII, Div 12A, ss 4AB, 45A, 60CA, 60CC, 62G 68L, 68LA, 69ZN, 69ZQ, 91B
Federal Circuit and Family Court of Australia Act 2021 s 67
Federal Court Act 1976 (Cth) s 31A
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 s 1.04
Revised Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2006 (Cth)
Cases cited: Aon Risk Management Limited v Australian National University (2009) 239 CLR 175
Australian Securities and Investment Commission v Cassimatis (2013) 220 FCR 256
H v W (1995) 18 Fam LR 788
Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251
McKellar v Container Terminal Manager Services Limited (1999) 165 ALR 409
Przbylowski v Australian Human Rights Commission (No 2) [2018] FCA 473
R & R: Children’s Wishes (2000) 25 Fam LR 712
Riva NSW Ltd v Official Trustee in Bankruptcy [2017] FCA 188
Spencer v Commonwealth of Australia (2010) 241 CLR 118
Stativa & Stativa [2015] FamCAFC 170
Trower & Kirwan [2015] FCCA 2491
Division: Division 2 Family Law Number of paragraphs: 168 Date of hearing: 2 September 2022 Place: Adelaide Counsel for the Applicant: Mr Lipari Solicitor for the Applicant: Matthew Mitchell Solicitor for the Respondent: No appearance Counsel for the Independent Children’s Lawyer: Ms Boyle Solicitor for the Independent Children’s Lawyer: Legal Services Commissions of South Australia ORDERS
ADC 1075 of 2014 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS TROWER
Applicant
AND: MR KIRWAN
Respondent
AND: INDEPENDENT CHILDREN’S LAWYER
order made by:
JUDGE BROWN
DATE OF ORDER:
16 September 2022
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The Initiating Application filed 2 December 2020 is dismissed pursuant to Rule 10.09(1)(d) of the Federal Circuit and Family Court (Family Law) Rules 2021.
3.The child X born in 2008 (“the child”) live with the mother.
4.The child spend time and communicate with the father subject to her wishes.
5.The father be at liberty to obtain copies of the child’s school academic reports, newsletters and photographs at his own expense.
6.The mother shall keep the father notified in writing of the name and contact details of the school that the child attends.
7.The mother keep the father advised of the child’s current residential address and contact telephone details.
8.In the event of a medical emergency involving the child, the mother do notify the father as soon as practicable.
9.The father be at liberty to send cards and gifts to the child on her birthday and Christmas with the mother to ensure the child receives the same.
10.The parties be restrained and an injunction is hereby granted restraining them from abusing, denigrating or rebuking the other in the presence or hearing of the child or from permitting any other person to do so or discussing these proceedings with the child or in the presence or hearing of the child or from permitting any other person to do so.
11.A copy of these Reasons for Judgment are provided to the Chief Executive Officer of the Department for Child Protection.
12.The appointment of the Independent Children’s Lawyer be discharged.
13.All extant applications be dismissed.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Trower & Kirwan has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION
Courts, including those administering the Family Law Act 1975 (Cth),[1] as it pertains to children, have the authority to manage proactively the matters which come before them and, in appropriate cases, to step in and dismiss those which can serve no useful purpose or which are abusive of its processes and wasteful of its resources.
[1] Hereinafter referred to as “the Act”
The current proceedings are focussed on parenting arrangements for the child, X (“X”) born in 2008. Accordingly, X is currently 14 years and 5 months of age, although for reasons which follows, it is likely that X is old beyond her years.
In particular, the lawyer[2] appointed for X to safeguard her interests in the case, pursuant to the provisions of section 68L of the Act, has applied for the summary dismissal of an application brought by X’s father, in December of 2020, which seeks final and interim orders that X live with him and he have sole parental responsibility for her.
[2] Hereinafter referred to as “the ICL”. Currently the ICL in this case is Ms Brooke Kneebone.
In addition the ICL has requested that the court to make orders in respect of X’s parenting, which do not envisage X spending any periods of time with her father, other than as she (X) wishes and that she live with her mother, who is to be conferred with sole parental responsibility for the child.
The highly unusual aspect of this case is that X’s mother has elected to have only limited involvement in the court proceedings and did not take part in the summary dismissal application. In these circumstances, needless to say, the case has a long and convoluted history before the court.
Background
X’s parents are her father, Mr Kirwan (“Mr Kirwan”) and her mother, Ms Trower (“Ms Trower”). There is no dispute that Mr Kirwan has not spent any time with X since Easter of 2021 and before then only brief and sporadic time from early 2020 onwards. It is to be assumed that X is currently living with her mother. However, Ms Trower has not taken any part in the proceedings since October of 2021. In August 2021 she indicated a willingness to investigate the possibility of being involved in some process of reunification counselling involving her, Mr Kirwan and obviously X herself.
Initially, Mr Kirwan filed a contravention application on 28 August 2020 alleging Ms Trower was in breach of earlier court orders regarding him parenting X. The catalyst for Mr Kirwan’s application was an initial incident which occurred on or around 11 March 2020 allegedly involving him and X. It is his position that he discovered what he describes as an inappropriate video on X’s laptop, which involved the child filming herself in a sexually explicit manner. Mr Kirwan, agrees that the video upset him and it is his case that he attempted to discuss it calmly with X and point out the dangers implicit in the video itself.
Ms Trower has it differently, alleging that the father overreacted to the incident, misconstrued whatever was in the video causing him to violently assault the child, leaving her hysterical and vehemently opposed to having anything further to do with her father. The assault was reported to police but no charge was laid against Mr Kirwan, although both he and X were apparently interviewed.
In this context, at the end of November 2020, X and her parents were directed to attend a child inclusive family dispute resolution conference, with a Family Consultant, Ms B. Although it is a lengthy passage, it is appropriate, I think, that what Ms B reported X said to her to be transcribed in full:
[X] aged 12 years in in Year 6 at [C School]. She is a tall, good looking and well-built girl, who looks older than her age. [X] was open and articulate and she engaged well in interview. There was no sense that she had been coached or influenced by either party, but rather that she was endeavouring to provide a genuine account of her lived experience in each household, but especially in her father’s.
[X]’s understanding of the purpose of today’s interview was in terms of “Dad wants me to live there again…but I don’t want to go back…if I’m forced to go back, I’ve told people I will run away…I’m unhappy there…I’ve been unhappy there for a long time”.
[X] acknowledged having had a ‘fairly good’ relationship with her father until November or December 2019 when “Dad found out I had social media and I hadn’t told him”. She said that thereafter, this continued to be a source of conflict between them and there were times when her father would not talk to her other than to say “dinners ready”, sometimes for up to four days. [X] recalled spending most of the last Christmas holidays with her mother…I didn’t want to go back to Dad’s…it’s the same thing over and over again” [beginning to cry at this point]
[X] further described how the father had expected her to do “all the cleaning and washing” from early 2019, supposedly for her to earn pocket money, but in reality, she said that her father only rarely if ever paid her $10 for her work, “If I added up how much he owed me for cleaning it would be in the thousands of dollars”. [X] added that her father would make threats to her about not taking her to [dance classes] “if I didn’t clean my room... he’d say, you won’t go to [dance classes] or you won’t see your Mum.” [X] listed the cleaning tasks as, “Wash dishes…clean kitchen… dining room…bathroom…washing and folding. She added, [Mr D] [one of the father’s two male housemates] used to say stop or take me into the city”.
Questioned in relation to concerns raised by the father about sexually explicit images on her computer, [X] shook her head and sighed, clearly frustrated to hear her father’s claims in this regard. She said, “I don’t know where he’s got that from…it’s just not true…there were no photos…all I had were [dance] [[dance classes]] poses…photos of me and my Mum…my friends…my uncle”. She added, “I had an old computer then Mum and Dad went halves and got me a new computer but Dad has locked it…we can’t unlock it”. She added, “Dad’s called the police saying Mum’s stolen it…now he’s blaming me for having stuff on it…it’s always someone else’s fault”. [X] believed that her father had gone onto iCloud and locked the computer than reported it stolen…it’s not stolen…it’s with me but it can’t be opened…it can’t be unlocked…the computer has been disabled”. She added, “I’m not running away from the social media stuff…in my mind that’s sorted…I’m not wanting to go back because he hit me and I’m scared he’ll me again”.
When reference was made to the incident/argument with her father that precipitated her staying with her mother rather than return to her father, [X] said, “We were arguing again about me being on social media…the same old argument we had been having since last year…that I kept it from him…that it was unsafe…over and over again the same thing...a normal parent would just talk about it but it went on for six months…he wouldn’t get over it [[X] began to cry at this point as she relived the incident in March 2020]” [X] then recounted, “We were sitting down at the table and he hit me… with an open hand…it hurt…the first and only time he’s hit me…I screamed and [Mr E] [one of the father’s housemates] came in saying, “Don’t tell me you hit her” and Dad said something like, ‘She’s lucky I didn’t knock her block off’…then [Mr D] [the other housemate] ran out of the bathroom…he didn’t see anything but he heard me scream”.
[X] recalled calling her mother on her way to school the next day, still very upset (“I was crying”) and asking her mother to collect her. Her mother then met her at the bus stop and had wanted to take her to the police straight away, but [X] said she wanted to go to school instead. She added, “I spoke to my House Leader…he took me to my old school counsellor…then the police visited me…asked me what happened…then a Sergeant came and interviewed me twice…Dad initially admitted he hit me then he started denying it…the Sergeant asked if I wanted to go through with charging him…I said no…I was scared if I was sent back to him he would do it again”. She added, “The Sergeant said it can be opened up at any time at all if I want”.
[X] said that her preference would be not to be forced to see her father, “if I had my way I wouldn’t see him unless it’s Father’s Day or his birthday…no more overnight time…only daytime visits…I don’t really want to but this is only if I had to…”
[X] then reported that her friends had been telling her that they always knew when she was staying with her mother “because I was so happy…since I’ve been with Mum they say I’m looking so happy all the time…I’ve had multiple people telling me this all the time”. [X] added, “Me and Mum have such a fun to together…I see Mum’s friends…my auntie my cousins”.
By contrast, [X] said that she does not see or speak to her father’s family. She said that although her father has a son, 23-year old [Mr F], “my half brother…he broke up with [Mr F]’s Mum when [Mr F] was about ten…Dad hardly ever sees [Mr F]...the last time I saw [Mr F] was on my10th birthday two years ago…the time before that was when I was 3 years old”. [X] added that her father does not seem to have relationships with his family, “His Dad died ages ago and he hasn’t seen his Mum for ages…and he hardly sees [Mr F]”.
[X] then spoke of feeling lonely and isolated at her father’s, being the only female in the house. She recalled her father having had a girlfriend for about a month in 2019 and that she relished having another female around, albeit only momentarily, “but he can’t keep a relationship with anyone”. [X] added, “I can’t talk to anyone about girl stuff like my period…I got it about 6 months ago”. [X] seemed surprised to be asked if she talked to her father about her boyfriend(s). She said she does not have a boyfriend, adding, “Maybe in Year 2 I did”.
When reference was made to her school, [C School], [X] said that she had made some good friends, “and I do really well in my subjects”. [X] was aware that her father paid for her schooling before adding, “Mum’s tried to pay but her name is not on the enrolment form…she’s got the money”. [X] further added, “Dad’s come to the school last Term to give me money but the school wouldn’t let him come in and see me” which she said, made her feel that school is a safe place for her.
Asked how she usually spent Christmas when with her father, [X] said that the father’s housemates, “One goes to Tasmania and the other goes to a country area” so it is usually just her and her father, “we don’t go anywhere…we don’t see anyone”. [X] said that she now does not feel safe alone with her father, since he has hit her. Asked if she could think of anyone who could accompany her if she was to spend time with her father, [X] replied, “I don’t know…Dad doesn’t like any of Mum’s friends or family…he says he’s going to bash them all”.
[X] concluded by rating herself “9 out of 10 happy” (with 10 out of 10 being happiest). She added, “I’m really happy at Mum’s but this whole thing with Dad is dragging me down by 1%...otherwise I would be 100% out of 10 happy”.[3]
[3] Child Inclusive Conference Memorandum to Court dated 20 November 2020 at [15] - [28].
Ms B’s account of her interview has not been subject to independent scrutiny and Ms B has not been subject to cross-examination. However, if what X is reported to have said to Ms B, she (X) must be regarded as an articulate child, who is more than capable of providing a narrative of her life to a professional person. In addition, her narrative provides a rational exposition of a variety of reasons as to why she would not wish to engage with her father.
Since the release of this report, from December 2020 onwards, there had been a series of orders, which mandated X spending periods of around 2 hours, on either a Saturday or a Sunday, on each weekend with her father. Attempts were made for the visits to take place at a venue, such as a café, where it was hoped X would feel comfortable. There is no controversy that these visits, in the main, have not taken place.
In addition, over this period, Ms Trower, who historically has displayed extreme reluctance to be involved in court proceedings initiated by Mr Kirwan concerning X, unless she absolutely has to, has gradually withdrawn from the proceedings. The last time she appeared being on 20 October 2021. In this context, Mr Kirwan has raised serious concerns regarding the suitability of Ms Trower’s home for a child of X’s age. It is his position that Ms Trower has been charged with serious drug cultivation charges and has currently absconded from these charges, whilst on bail.
The previous proceedings
Mr Kirwan and Ms Trower have been involved in court proceedings, involving parenting arrangements for X, since March of 2014, when she was 6 years of age. These earlier proceedings centred on allegations of serious parenting deficiencies by each of the parties concerned; drug use by each; serious mental health issues of both of the them; and criminal involvement.
Given the significance of these allegations, on 24 June 2014 an order was made requiring X to be independently represented in the proceedings. Thereafter, an ICL has been discharged and re-appointed over the course of the next eight years.
The first major piece of litigation proceeded to trial, which occurred before me in August of 2015, with judgment delivered on 18 September 2015.[4] It was Ms Trower who commenced the proceedings in 2014. At that stage she sought the assistance of the court to recover X from Mr Kirwan, who had retained her following the celebration of X’s sixth birthday with her.
[4] See Trower & Kirwan [2015] FCCA 2491.
In her affidavit in support of her application for the recovery order, she described Mr Kirwan as a violent and controlling person, who was severely hooked on methamphetamines, which he injected intravenously.[5] At that time, although there were no formal orders in place regarding the child, I was satisfied that it was appropriate that X live with her mother. In these circumstances, the father was directed to return X to her mother, in the foyer of the Suburb G Police Station, on 28 March 2014. These difficult and volatile circumstances were the catalyst for the first appointment of an ICL.
[5] See affidavit of Ms Trower filed 27 March 2014 at [9].
On 17 December 2014, it was ordered that a Family Report be prepared. Thereafter, difficulties arose with Ms Trower cooperating with the processes entailed in the preparation of such a report. In March of 2015, a warrant was issued to require her to attend at court. In addition, pursuant to section 91B of the Act, the child protection authorities, for the State of South Australia, were invited to intervene in the proceedings. This was an invitation which was not taken up.
Thus, at an earlier stage, a pattern was set of Ms Trower utilising court processes when it assisted her but otherwise ignoring them when they did not, which was largely when X was in her care. Mr Kirwan has also frequently sought the court’s assistance, when he has asserted Ms Trower has withheld the child from him.
X has yo-yoed back and forth between her parents, in circumstances in which it must axiomatically be the case that she is well aware of the conflict between them and, in my view, it is also likely that, as she has matured she has become aware of the power for her inherent in this situation. Essentially, she has been conferred, by the endemic conflict, with the power to choose where she will live. Once conferred with such power, it is likely to be close to impossible to remove it from her. Certainly, I doubt that this court has the tools to do so in a child focussed manner.
Thus began a process in which each of the parties has elected to retain X from the other, on the basis of concerns about her safety and what the child had reported to them. Which in turn led to the involvement of a wide variety of experts, mandated by the court, who have interviewed X and endeavoured to ascertain what are her views in respect of the vitriolic controversies, which surround her parenting.
THE PROCEEDINGS OF SEPTEMBER 2015
The most striking feature of the 2015 proceedings was that they were concluded in the absence of Ms Trower. At this stage, it was Mr Kirwan’s position that X should live with each of her parents on an equal time basis. This outcome was opposed by the ICL and not supported by the Family Report writer, Ms H.
In the course of the earlier judgment, I detailed the significant social disadvantages, which had marked Mr Kirwan’s childhood. I also noted Mr Kirwan’s significant background of psychiatric illness, which had been detailed in reports provided at a sentencing hearing before the District Court, in 2010, when he had been sentenced to a term of imprisonment in respect of a charge of cultivating cannabis.
Although Ms Trower did not attend the final hearing, she did take part in the Family Report process and both she and Mr Kirwan were observed interacting with X. The report was detailed and well considered. Ms H gave extensive evidence, as did Mr Kirwan.
In her evidence, Ms H reported a tendency for the parties to have periods of relatively conflict-free interaction with one another, which periods of calm invariably broke down. In the periods when there had been some rapprochement between the parties, X had regularly spent time with her father but she had also been just as regularly withheld from him.
At the time of her interviews with the parties, Ms H reported that the respective positions of the parties had returned to their previous polarised status – with the mother renewing her assertions regarding Mr Kirwan’s violence; whilst Mr Kirwan reverted to his views that Ms Trower was alienating X from him.
In the judgment, I summarised Ms H’s evidence as follows:
[Ms H] also observed [X] to be comfortable in her interactions with [Ms Trower] and [Mr J], both of whom were described as being attentive towards [X]. Overall, [Ms H] observed the child to be more confident and self-assured, with her mother, than with her father.
In interview, [X] did not seem to [Ms H] to be entirely spontaneous. This was particularly so in respect of her indication that she did not wish to spend time with her father, which to [Ms H]’s ear seemed to be a view which was rehearsed rather than spontaneous.
It was also [Ms H]’s view that [X] was likely to have been exposed to parental conflict, in the past. Interestingly, [X] spoke positively of spending overnight time, with her father, in June/July and September/October of 2014, which coincided with the thawing of relations between the parties.
In her evaluation of the family, [Ms H] did not consider that [Mr Kirwan] was likely to pose a physical risk to [X]. She reached this view because of the tension between the mother’s reported fear of [Mr Kirwan] and her apparent willingness to allow him to spend extended periods of time, with [X], when it suited her. In this context, [Ms H] also noted a lack of collateral evidence to support [Ms Trower]’s claims.
Overall, [Ms H] was much more concerned about the potential danger posed to [X], arising from her parents’ drug use. In particular, she was concerned about the risk of [Mr Kirwan] using illicit substances as a means of self-medicating his depression, given what she understood of his prior psychiatric history, which she had obtained from contacting [Dr K].
[Ms H] considered that [Ms Trower] presented with some understanding of [X]’s developmental needs. However, her decision to keep the child from school, on Wednesday afternoons, to avoid her spending time with her father was seen as evidence of a compromised parenting capacity for two major reasons.
Firstly, it was not helpful for [X] to have her routine and school attendances so disrupted; secondly, exposure to such an avoidance mechanism for the solving of problems was not seen as good role modelling for the child.
[Ms H] described [Mr Kirwan] as being cognisant of his own personal challenges and issues, relating to his previous mental health problems and drug use. She also considered that [Mr Kirwan] was likely to be a positive influence in [X]’s life because of his unconditional love for her, which was likely to lead to [X] having a sense of security and stability in her life. Given these factors, [Ms H] considered that it would be in [X]’s best interests, if she was able to maintain a meaningful level of relationship with her father through spending substantial time with him.
[Ms H], for obvious reasons, assessed the parties’ parenting relationship as one marked by significant conflict. I agree with that assessment. It was her view that [X] was acutely aware of the conflict between her parents. In this context, [Ms H] recommended that, if at all possible, all handovers of [X] be structured to avoid the parties coming into direct contact with one another.
Given the level of conflict between [Mr Kirwan] and [Ms Trower], [Ms H] was not in favour of an equal time arrangement, as she considered it would place an unacceptable level of psychological strain upon [X]. She also considered that the parties had no effective mechanisms to communicate with one another.
It was also [Ms H]’s view that, given the mother’s lack of compliance with previous court orders and her likely propensity not to support [X]’s relationship with her father, it was essential that [X] spend substantial and significant time with her father to address the risk of child and father being alienated from one another.[6]
[6] See Trower & Kirwan [2015] FCCA 2491 at [164]-[173].
In this context, orders were made that X live with her mother and spend defined periods of time with her father, including overnight on each weekend and on alternate Wednesday evenings. In my view, this was the best way forward. For obvious reasons, it was far from desirable that the orders were made in the absence of Ms Trower.
The case returned to court in May of 2016, on Ms Trower’s application filed 22 April 2016. She alleged that the father had retained X during the Christmas school holidays and had withdrawn her from school, so that she could not engage with her mother.
Essentially, she said that Mr Kirwan had behaved in the same way, as he had earlier alleged she had – not sending X to school, so that the other could not intercept her. Again this has been a constant theme of the proceedings to date – each party asserting that the other has interfered with X’s education to thwart the other.
It was further Ms Trower’s evidence that she had not physically seen X since 3 February 2016. In addition, she alleged that the father was living with individuals who were methamphetamine users, as was Mr Kirwan and accordingly X was at significant risk of coming to harm.
At the first mention of the mother’s application, I directed that the ICL be reappointed. In addition, Mr Kirwan was granted time to file answering documents and, in the short term, I directed that X spend some time with her mother. These were holding orders whilst more information was gathered.
When Mr Kirwan filed his affidavit material, it became apparent that he had withheld X from her mother because of allegations that the mother’s then partner was a drug dealer, associated with an outlaw motorcycle gang, and, as well was an abuser of steroids. In these circumstances, he alleged that X was frightened of this person and had hysterically begged him not to be returned to her mother’s household.
In these extraordinarily challenging circumstances, in which each of the parties again maintained their strident criticisms of the other parent, I ordered that each of them be subjected to a series of random supervised drug screen tests and that there be a further and urgent Family Report to be prepared by Ms H.
With some foreboding, I ordered that X should live with each of her parents, on a week about basis (Mr Kirwan’s initial objective) whilst investigations into parental risk were undertaken. In the rubric of the ICL, this was characterised as a sharing of the risk.
At the time of the second report (29 July 2016) X was aged 8 years 4 months. She was described by Ms H as being a confident, articulate child, who knew why she was being interviewed by the court expert.[7] I have no reason to believe anything other than that X continues to be aware of both the conflict between her parents and the reason why the court directs that she be subjected to interview. As will become apparent in due course, it is the gist of the ICL’s position that X has been interviewed enough by various experts and the time has come to let her be.
[7] Updated Family Report of Ms H dated 29 July 2016 at [61].
At this stage (as is the case now), one of the passions in X’s life was dance classes. She complained to Ms H that her mother had not been supportive of her activities in this area. More significantly, she also reported that she felt safer in her father’s care. Significantly, X stated that she wished to live more with her father than her mother. In the context of the report process, Ms H was not able to make any definitive findings about the level of risk Ms Trower’s partner posed for X but it was apparent that X had some antipathy for him.
Overall, Ms H was concerned about the mother’s level of parental insight, particularly given X’s disclosures to her about her mother’s lack of attention to very matters in her life. However, Ms H was concerned that it would not be helpful to X’s emotional development to abruptly reduce the extent of time, which she shared with her mother. Ms H was unequivocal that any equal time was essentially unworkable given the extreme and long standing antipathy between X’s parents.
The take away message from the report was that there were potentially very serious emotional issues arising, for X, of her being continually exposed to the extreme conflict between her parents and for her care arrangements to be in a state of constant flux. Presciently, Ms H also raised concerns regarding the child being alienated from one or other of her parents, in what was essentially a perennial struggle between her parents.
Although the second report was released to the parties on 29 July 2016, Ms H actually interviewed them and X on 13 July 2016. On 15 July 2016 a serious incident occurred which overtook events and the recommendations of Ms H. It also led to a worsening of the relationship between the parties.
On this day, X was attacked by a dog, owned by the mother’s then partner, which had occurred in the living room of Ms Trower’s home. The dog concerned had to be put down due to the ferocity of the attack. X suffered bite wounds on her face and was referred to a craniofacial surgeon. Her teeth were also damaged. I was shown photographs of X’s face, which were alarming.
In these circumstances, Mr Kirwan complained that Ms Trower had downplayed the incident; withheld X from him to conceal it; and the incident itself was indicative of her poor parental insight and capacity to protect X. In these circumstances, he sought that any time X spent with her mother should be curtailed and subject to supervision.
For obvious reason, the incident involving the dog attack on X had serious repercussion for the parties’ parenting relationship with one another, which became even more strained and mistrustful. In these circumstances, I requested Ms H to update the second Family Report to ascertain if the incident had changed her recommendations.
The addendum to the report was released to the parties on 11 November 2016. At this stage, X continued to report negatively about her mother and her partner. Ms H reported as follows:
In spite of [Mr Kirwan]’s clear commitment towards [X]’s best interests, his ability to wholly support [X]’s relationship with [Ms Trower] is questionable. This is unsurprising given the trauma of the dog attack not only for the child but also the parents. It is unsurprising that [Mr Kirwan] has lost further trust in [Ms Trower]’s ability to ensure [X]’s care and protection. [X] has indicated that [Mr Kirwan] has discussed with her, [Ms Trower]’s tendency to be dishonest, and thus it appears that [X] has likely been exposed to [Mr Kirwan]’s negative view of the mother. However, the child’s reported lack of trust in [Ms Trower] appears to also have been informed by her own observations of [Ms Trower]’s alleged tendency to be dishonest, to create fabrications that serve her own interests and at times her unreliability in terms of ‘keeping her promises’ to the child.
The dog attack was an accident. There is nothing in [X]’s account of the incident to suggest that [Ms Trower] or [Mr J] intentionally placed the child at significant risk of harm. Nonetheless, the incident highlighted a lack of adequate parental supervision to ensure [X]’s safety and echoes a possible concern that [Ms Trower] will at times compromise upholding [X]’s best interests in favour of appeasing [Mr J]’s wishes and opinion.
[X]’s disclosures suggest that in spite of the critical incident in July 2016, her own misgivings about [Ms Trower] and her likely exposure to parental conflict, and paternal influence; there remains a significant attachment between the child and mother and ultimately, that the child wishes to continue to send significant and substantial time with [Ms Trower]. Congruent with [X]’s age and stage of development, she was unable to confidently quantify how much time she would like to spend with [Ms Trower], other than she would like for this to include overnight periods at regular intervals.[8]
[8] See addendum to Updated Family Report dated 11 November 2016 at [21]-[23].
In these circumstances, on 14 November 2016, I ordered that X should live with her father and spend regular and defined periods of time, with her mother, on alternate weekends, during term time; for an after school meal each Thursday; and for regular extended blocks of time during school holidays. The parties’ competing applications were fixed for a further trial, which was scheduled to take place on 23 and 24 May 2017.
When the trial came around, with the assistance of the parties’ respective counsel and the ICL, in the light of Ms H’s, by then extensive reports, the parties were able to agree on a final regime for X’s care. This envisaged the parties have equal shard parental responsibility for her and with the child spending regular periods of time, with each of the parents, but living more with her mother.
At this stage, X was 9 years of age and it was apparent to me that her life, up to this stage, had been one marked by parental conflict and some level of instability, which had commenced at an early stage, when her relationship with her father had been interrupted by his incarceration.
More recent events
As previously indicated, the case returned to court, on Mr Kirwan’s instigation, on 28 August 2020, following the incident involving X’s laptop. It was Mr Kirwan’s position that Ms Trower had fabricated the claim of assault against him in order to disrupt his relationship with X. If this is true, as is evident from what the child said to Ms B, she is part of this conspiracy. He was also concerned that X had been withheld from school to frustrate the existing court order.
At the first return date of the contravention application (23 September 2020) the proceedings were adjourned until early December and Ms B was engaged to interview X at the earliest opportunity, with the outcome noted above. Ms B was of the view that X’s account to her and the complaints she had made about her father’s conduct indicated that X was seeking to live in a more sympathetic, gender attuned and supportive living environment than she considers is available at her father’s.[9]
[9] See Child Inclusive Conference Memorandum to Court dated 20 November 2020 at [32].
In this context, although Ms B was of the view that X’s views should be respected, she also considered that it was important that attempts be made to reconcile X’s important relationship with her father and for trust to be re-built between the two.
For her part, Ms Trower, who was legally represented at this stage, denied withholding X from school pointing to the fact that she had been home schooled during much of 2020 due to the pandemic emergency. She denied fabricating any claim of assault, indicating that she had only reported what X had told her.
In November of 2020 the dynamic of the case changed dramatically yet again – a change which continues to have ramifications up until the present time. On 2 December 2020, Mr Kirwan filed an initiating application and supporting documents seeking that X live with him, on both an interim and final basis and that he have sole parental responsibility for the child. He wished the court to make an urgent order requiring X to be delivered to his care forthwith.
In his supporting affidavit, he indicated that he had seen a televisions news report, on 26 November 2020, which indicated that a 42 year old woman and her daughter had escaped from a fire at a house, in Suburb H, after an electrical fault, related to a hydroponic cannabis crop, had ignited.
Mr Kirwan suspected that these individuals were Ms Trower and X, a suspicion which was subsequently confirmed by police. Mr Kirwan himself had long been suspicious regarding Ms Trower’s lifestyle and the fact that she had been able to purchase a residential property, when she had no apparent legitimate financial means of support. As a consequence, it is his view that Ms Trower has had a long involvement in serious crime and the individuals who operate in this world and her connections, in this regard, represents a significant threat to X’s security and wellbeing.
These serious matters were the catalyst for a further reappointment of the ICL in the case. However, notwithstanding the gravity of the matter, I was not prepared to make an ex-parte order for the delivery up of X to Mr Kirwan, given the information available to me from Ms B, regarding her views.
Ms Trower responded to the issues raised by Mr Kirwan on 16 December 2020. She agreed that there had been a fire at a property at Suburb H associated with her. She asserted that it involved 12 cannabis plants, in two rooms. She denied that the cannabis was being grown for any commercial purpose and asserted that X was unaware of it. Needless to say, Mr Kirwan greeted these denials with incredulity.
On 21 December 2020, I made orders for X to spend 2 hours each Saturday, with her father, including on the forthcoming Christmas, with the child to be exchanged at a café at J Plaza. Given the allegations that the child was being exposed to serious criminal activity, on this date, I also invited the Department for Child Protection[10] to intervene in the proceedings pursuant to section 91B of the Act.
[10] Hereinafter referred to as “the Department” or “DCP”.
Information obtained by the ICL confirmed that the house fire at Ms Trower’s home had been caused by an overloaded power board, utilised to light an indoor hydroponic drug crop, which had caught fire. Ms Trower had been charged in relation to the crop, which involved 12 mature plants. Ms Trower had declined to answer questions and no other person had apparently been charged with her.
As a consequence of the invitation advanced to DCP, departmental workers met with Ms Trower and X on 4 February and 17 February 2021. Ms Trower admitted growing cannabis and indicated that she had done so to make herself some extra money. The Department accepted that she was remorseful about the incident and it had been motivated by financial necessity. Again, matters which Mr Kirwan doubts and in his view confirms Ms Trower’s capacity to con people.
Ms Trower also denied to DCP that X had been exposed to her activities and certainly, and not unsurprisingly, when the workers examined Ms Trower’s home, they found no evidence of cannabis or other drug production equipment. They were however somewhat dubious that X had been unaware of her mother’s activities, when they were in train, given the smallness of the house and the extent of the cannabis being grown.
Ms Trower alleged that she had been subject to frequent instances of coercive and controlling behaviour, emanating from Mr Kirwan, to which X had been exposed during her childhood. In these circumstances, once X had reported being slapped by her father, Ms Trower was supportive of the child’s desire not to spend any further time with him.
However, interestingly, Ms Trower did not indicate that she had any particular concerns about Mr Kirwan’s level of care for the child but she was disinclined to force X to do something that she did not want to do. It is no longer Ms Trower’s position that Mr Kirwan is able to properly parent X.
Mr Kirwan denied to workers that he had ever physically harmed X. He confirmed that he had confronted the child about the photographs on her laptop, which he described as nude photos of X. Mr Kirwan also indicated that he had strict rules about the child’s access to social media. It remained his position that Ms Trower had orchestrated X’s position in respect to her opposition to spending time with him.
In respect of Ms Trower, Mr Kirwan provided a negative account of both her personality and parental capacity, which he asserted were each marked by a long history of drug abuse and criminality. It was his position that he had been X’s primary carer of her from the age of 2 or 3 years onwards, which had only been interrupted by his incarceration in 2010.
The Department summarised its interview with Mr Kirwan, following a visit to his home, in the following terms:
Throughout the department’s current home visits, and additional text messages and phone calls, [Mr Kirwan] has raised a number of concerns relating to [Ms Trower] and historical events related to her parenting of [X].
Apart from events in November relating to the cannabis cultivation in [Ms Trower]’s home, [Mr Kirwan] was unable to provide any current information relating to [Ms Trower] and her ability to provide care, only that he feels her past behaviour and inability to prioritise [X] is likely continuing. [Mr Kirwan] was disparaging of [Ms Trower] and was often focused on her behaviour, rather than his own or on [X].[11]
[11] See DCP report at pages 4 & 5 of annexure BK-2 to affidavit of Brooke Kneebone filed on 22 June 2022.
Departmental workers arranged to interview X, at her school on 29 January 2021, in the presence of the school social worker. X was described as being neat and tidy and being polite and articulate. She further indicated that she had spoken to a number of people, about her views, including to Ms B at the court. In this context, X indicated that she felt comfortable to express her views.
In respect of her mother, the report from the Department dated 26 February 2021, indicates as follows:
[X] advised the department that she was currently residing with [Ms Trower] and that there is no one else residing in the home. The department is aware that concerns had been raised that [Ms Trower] had reconciled with her former partner, [Mr J], however [X] confirmed that [Ms Trower] was not currently in a relationship and had not been in one for a number of years.
[X] advised the department that she had been residing with [Ms Trower] full time since March 2020, that she thinks "it's great" living with [Ms Trower] and [X] enjoys spending time with her. [X] described having a close relationship with [Ms Trower] and described [Ms Trower] as "a good person". [X] discussed engaging in [dance classes] with [Ms Trower] and other dancing groups, [X] spoke about these activities and her relationship with [Ms Trower] with a smile and appeared genuine in her expressions about enjoying spending time with [Ms Trower]. It was apparent through conversations with [X], as well as information from the school, that [X] has a close and positive relationship with [Ms Trower].
[X] did not express having any worries about living with [Ms Trower] and that she had not ever felt unsafe residing in her care. [X] clearly expressed wanting to remain living with [Ms Trower] full time.[12]
[12] See DCP report at page 5 of annexure BK-2 to affidavit of Brooke Kneebone filed on 22 June 2022.
In respect of her father, the Department recorded as follows:
[X] reported to departmental workers that she had told a number of people that she does not want to have any contact with [Mr Kirwan] at this point in time. [X] expressed that she had stopped wanting to see [Mr Kirwan] after he had "hit" her in March 2020. [X] discussed that [Mr Kirwan] had physically harmed her on this occasion after he had found "some things" on her social media and "wouldn't let it go", became angry at her and slapped her across the face. The department has information that [X] has expressed [Mr Kirwan] took her shopping after the incident and had "acted like nothing had happened".
[X] reported to departmental workers that she also did not want to speak to [Mr Kirwan] at this current time as [Mr Kirwan] was always saying "awful" things about [Ms Trower]. [X] expressed that [Ms Trower] is a "good person" and that she no longer wanted to listen to [Mr Kirwan] say such things about [Ms Trower]. [X] discussed with the department that if she did not have a choice and had to spend time with [Mr Kirwan], she would prefer to see him every fortnight rather than every week, as the court orders currently stipulate. The department is aware that [X] has refused to attend visitation with [Mr Kirwan] for a number of weeks, and has also chosen not to speak with [Mr Kirwan] via phone.[13]
[13] See DCP report at page 6 of annexure BK-2 to affidavit of Brooke Kneebone filed on 22 June 2022.
Given the outcome of its investigation, the Department declined the invitation to intervene in the proceedings. Specifically, it did not have any current concerns for X’s safety and wellbeing, whilst she remained in her mother’s care. At this stage of the report, the Department did not believe that it could be regarded as definite that Ms Trower would face incarceration as a consequence of the cannabis cultivation charge. In addition, Ms Trower nominated other family members, who would be able to care for X, in this eventuality.
In respect of Mr Kirwan, the Department provided the following assessment:
The department is concerned that [Mr Kirwan] focused on historical events through discussions with the department and trying to prove that [Ms Trower] was not fit to provide care to [X]. [Mr Kirwan] was unable to reflect on his own behaviours and it is of concern that this may indicate limited capacity for insight in to [X]'s needs and ultimately changing his behaviours to meet her needs.
Whilst there is concern for [Mr Kirwan’s] controlling nature, the department does not have any evidence at this time to suggest that [Mr Kirwan’s] poses an immediate safety risk to [X]. Nonetheless, [X] has expressed clear views to a number of people that she does not currently wish to have any contact with [Mr Kirwan], which has also been evident in her refusal to attend contact over the last few weeks. The department considers that [X] and [Mr Kirwan's] relationship is currently fractured, and should contact orders be made, [Mr Kirwan] and [X] will require support to build and repair their relationship gradually.
[X] is almost thirteen years of age and it is important that her views and wishes are considered when making decisions around care arrangements and time spending to ensure her emotional and psychological wellbeing.[14]
[14] See DCP report at page 7 of annexure BK-2 to affidavit of Brooke Kneebone filed on 22 June 2022.
The case returned to court on 29 March 2021. Ms Trower attended court with her solicitor. At this stage, on the instigation of the then-ICL, Ms L, the parties were directed to engage with Mr K, a social worker, with considerable experience in compiling Family Assessment Reports in respect of conflicted families, with a view to seeing whether X and Mr Kirwan would be suitable for reunification counselling.
Ms Trower’s solicitor withdrew from the proceedings on 23 June 2021. There were delays in engaging Mr K. Ms Trower did not attend court on 26 August 2021 and could not be contacted by telephone. She did attend on 27 August 2021, the case having been adjourned overnight. At this stage, Ms Trower indicated a willingness to involve herself and X with Mr K.
Around this time, the re-appointed ICL, now Ms Brooke Kneebone, reported that she first met X in October of 2021, at which stage she (X) indicated some willingness to spend some supervised time with her father, so long as he was able to control his anger towards her.
In this context, it was ordered that X spend time with her father, for 2 hours each Sunday, subject to the supervision of Ms M. She was a family friend of Mr Kirwan and it was hoped that X’s familiarity with her might act as an incentive for X to attend a lunch with her father.
Mr K’s report was released to the parties on or about 15 October 2021. Mr K interviewed Ms Trower at her aunt’s home, where she was then living, with X, whilst her own home was being renovated. To Mr K, Ms Trower indicated that X had continued a significant level of emotional distress, following the laptop incident and she herself believed Mr Kirwan to be an emotionally abusive parent.
Significantly, in her interview with him, Ms Trower acknowledged that there were issues about X’s ongoing school attendance. She reported that X did not like school and was reluctant to attend. This was apparently a source of friction in the mother and daughter relationship.
Mr K described his interview with X as follows:
The writer asked [X] if she would be prepared to work towards seeing her father and spending time with him. [X] was direct in her answer. She said, "No." The writer asked her why she does not want to see her father and spend time with him. [X] replied, "When I was seeing him on Sundays the last few times he was yelling at me that it was all my fault." The writer asked the girl what her father meant by this. [X] shrugged and said, "Everything."
The writer asked [X] what had happened prior to the incident in which she claims her father hit her. [X] explained, "It was a social media drama, he found out that I had Instagram." [X] said that her father had got angry with her and was shouting at her about this.
[X] had some news for the writer. She said, "He kept me from school for sixteen weeks." The writer asked the girl when [Mr Kirwan] had done this. [X] replied, "When I was eight or nine." The writer asked [X] why her father had done this. [X] explained, "He didn't want me to see Mum."
The writer asked [X] how she would describe her father. [X] answered, "He is a control freak and he has to be in control of everything." The writer asked [X] if [Mr Kirwan] has always been like this. [X] explained, "Slowly over the years he has got worse and worse"
[X] remains upset and angry regarding the incident in which she claims that [Mr Kirwan] hit her. She said, "I could have knocked [me] on a table or got hit worse. He is a big man." [X] said that she is afraid of her father.
The writer told [X] that he had heard that [X] had taken nude film of herself and that her father had found this. [X] denied that she had taken nude film of herself. [X] said that she had taken film of herself learning a back flip with one of her coaches. [X] said that she had been fully clothed in the film.
The writer asked [X] if she misses her father. [X] answered, "I miss the old him not the new him, the aggressive him".[15]
[15] See Family Assessment Report of Mr K at page 7 & 8 of annexure -2 to affidavit of Ms N filed 18 October 2022.
Mr K also interviewed Mr Kirwan at what was described as his comfortable and neat home. Mr K described him as an intense and forceful person. This accords with my own impression of him, garnered over many years. As throughout these lengthy proceedings to date, to Mr K, Mr Kirwan indicated his view that he was by far the more competent and protective parent.
In particular, Mr Kirwan described Ms Trower as being a highly manipulative person, who was clearly significantly involved in the illicit drug trade and as such, was at significant risk of a prison sentence. It remained his position that Ms Trower had been able to manipulate the Department, the court, and most significantly X against him and he was very much a voice in the wilderness, as the only person, who was focussed on X’s safety and wellbeing.[16]
[16] See Family Assessment Report of Mr K at page 11 of annexure -2 to affidavit of Ms N filed 18 October 2022.
In his overall assessment, Mr K described the level of relationship between X and her father as one of collapse. Mr K did not share the Department’s sanguine view about the mother’s involvement with cannabis or criminal elements generally.
In this context, Mr K was not impressed with Ms Trower’s apparent lack of responsibility for the incident and he doubted whether a criminal court would approach the matter with the same level of insouciance as the Department. In this context, the thrust of Mr K’s report was that issues regarding Ms Trower’s criminality did have significant implications for X’s ongoing welfare, particularly in terms of her being exposed to an appropriate role model for her own conduct.
Mr K’s assessment of the family can be summarised in the following terms:
·X currently refused to spend time with her father and is supported in this refusal by her mother;
·X personally is disinterested in repairing her relationship with her father;
·X was likely to find her father to be a difficult parent for a number of reasons, which related to the following issues:
·He was conservative in nature and believed in rules and structure; and
·He was demanding in respect of her school attendances.
·X and her mother had formed an alliance against Mr Kirwan, leading to an unhealthy coalescence of the adult and child worlds;
·In this alliance, X had become the most powerful and influential player, in what Mr K described as the perennial battle between her parents; and
·Given the serious nature of the allegations about Ms Trower’s criminality, Mr K was concerned that X lacked the maturity to judge her mother’s capacity to care for her and make sensible decisions regarding her.
In all these circumstances, Mr K had no confidence that any process of reunification counselling would serve any useful purpose whatsoever. In these circumstances, Mr K was concerned about the implications, for X, of the continuing dynamic. He concluded his report in the following terms:
The issues in this case remain complex. Unfortunately there are very few courses of action available given the opposition from [X] and her mother. If the primary issue is to be [X]'s safety then this would require a family assessment. The alliance between [X] and her mother has completely degraded any judgement [X] can make at present about where her own best interests lie.
At the present time [X] is in the position of having a high degree of power with very little responsibility. The current dispute and the dynamics between [X] and her parents mean that [X], the least able of the three due to age and immaturity, is the main driver of what is happening. This is a very dangerous position for this young woman to find herself in. She has already demonstrated her poor judgement by going to live with her mother. At this time [X]'s judgement is verging on being self-destructive.[17]
[17] See Family Assessment Report of Mr K at page 16 of annexure -2 to affidavit of Ms N filed 18 October 2022.
With the assistance of Mr K’s report, the case was fixed for a further interim hearing, scheduled for 20 October 2021. On this date, Ms Trower was directed to file an affidavit setting out the status of her criminal charges and whether any other person had been charged with her. She has not complied with this direction.
The case was then adjourned until shortly prior to Christmas 2021. Ms Trower has not appeared at court on five subsequent mentions of the matter, which have been fixed thereafter. More significantly, X has not attended any visits with her father and the presence of Ms M has apparently had no effect.
In these circumstances, I directed that the ICL, Ms Kneebone, to attend upon X’s school and endeavour to speak with her to see if X was still willing to see her father, as had previously been indicated. As a consequence of the court order, Ms Kneebone attended at X’s school on 11 May 2022. In this context, Ms Kneebone deposed as follows:
The child remained adamant that she wanted no relationship with her father whatsoever.
When I spoke to the child about her father, she was very vocal about her thoughts and opinions. She told me that she had not seen him or had contact with him since we last met.
She further told me that she does not want to see him at all. She does not want to speak to him on the phone or receive any cards or gifts. She has just had enough of it all and suspects he will run the proceedings through the Court system until she is 18. The child said that she even dyed her hair blonde so the father would not recognise her. The child disclosed to me that if she has to spend time with him again, she will run away.[18]
[18] See affidavit of Brooke Kneebone filed 22 June 2022 at [31]-[33].
Ms Kneebone has also obtained up to date information from South Australian Police regarding their involvement with the family.[19] This indicates that Mr Kirwan contacted them on 9 May 2022 requesting what is known as a welfare check in respect of X. Ms Trower was not particularly cooperative with this process but ultimately police officers sighted X and she reported that she was ok. Ms Trower was next due in court, for her drug charges, on 22 July 2022.
[19] See annexure BK-3 to affidavit of Brooke Kneebone filed 22 June 2022.
It was in this context that Ms Kneebone filed her application on 22 June 2022 seeking the summary dismissal of Mr Kirwan’s application. In support of this application, she points to the following factors:
·In recent times, X has indicated to her (Ms Kneebone); Ms B; Departmental workers; and Mr K that she does not want to see or engage with her father;
·X has not spent any meaningful time with her father since March of 2020 and given her age significant weight ought to be placed on her views;
·Given Ms Trower’s disengagement from the proceedings, Ms Kneebone is concerned that to compel Ms Trower to engage, in some way, with the case, will only further fracture X’s relationship with her father and serve no useful purpose;
·In these circumstances, for the child to be interviewed yet again, is likely to constitute systems abuse; and
·It is evident from Mr K’s report that any attempt at therapeutic intervention involving X and her father would be futile.
In closing, at this stage, I have reached the conclusion that the court’s further involvement in this matter can serve no useful purpose for the advancement of X’s best interests. As a consequence, I will dismiss Mr Kirwan’s application and make an order that the child live with her mother and spend such time, with her father, at such places and times, as she wishes to do so from time to time.
I do not propose to make any specific order in respect of parental responsibility. X has two parents. I accept that Mr Kirwan is vitally interested in every aspect to do with X’s care, welfare and development. In this context, I do not propose to confer sole parental responsibility on Ms Trower alone. Rather each parent will retain the authority incumbent in them, as parents, pursuant to the common law.
It is appropriate that I make the orders proposed by Ms Kneebone regarding the provision of school reports and the like and requiring Ms Trower to keep Mr Kirwan informed of where X is living and where she can be contacted and in the event the child is involved in some serious emergency or becomes seriously unwell. In addition, I will make an order authorising Mr Kirwan to be able to send cards and gifts to X on her birthday and at Christmas and requiring Ms Trower to pass them on to her.
I will also formally make the injunctions proposed by Ms Kneebone regarding non-denigration. I decline to make the injunction regarding Mr Kirwan attending at the child’s school. There is no evidence that any of his attendances at X’s school have been problematic. This must be a matter for the school authorities.
I certify that the preceding one hundred and sixty-eight (168) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 16 September 2022