FEDERAL CIRCUIT COURT OF AUSTRALIA
JACOBS & JACOBS (No. 2)	[2015] FCCA 1043 	

Catchwords: 
FAMILY LAW – Parenting – children aged 15, 14, 12 & 11 – parents have been litigating on and off since 2007 – applications for final orders made in 2007, 2011 and 2013, two by the mother and one by the father – family reports prepared in 2008 and 2013 – orders for the return of the children to the mother made in 2007 and 2013 – contravention applications filed by the father in 2008 and 2012 – where children have been spending time with the father without incident since the last blow-up between the parties in January 2013 – where the father consents to an order that the mother have sole parental responsibility but otherwise largely wants the existing orders to continue – where the father did not attend the hearing – where the mother presses for orders which will reduce the children’s time with the father and have him declared a vexatious litigant – not in the children’s best interests to reduce their time with the father – grounds for having the father declared a vexatious litigant not made out.	

Legislation:
Family Law Act 1975 Cth ss.60CC, 61DA, 102QB, 118	

Attorney-General (NSW) v Wentworth (1988) 14 NSWLR 481
Godfrey & Sanders [2007] FamCA 102
Hungerford & Tank [2007] FamCA 637
Jacobs & Jacobs (2009) FMCAfam 719
King & Finneran ( 2001) FLC 93-079
Langmeil & Grange (2013) FamCAFC 31
Mazorski & Allbright (2008) FamLR 518
Rice & Asplund [1979] FLC 90-725
SPS & PLS [2008] FamCAFC 16	

Applicant:	MS JACOBS	

Respondent:	MR JACOBS	

File Number:	NCC 2893 of 2007	

Judgment of:	Judge Terry	

Hearing date:	20 November 2014	

Date of Last Submission:	20 November 2014	

Delivered at:	Tamworth	

Delivered on:	29 April 2015	

REPRESENTATION
Counsel for the Applicant:	Mr Tregilgas	

Solicitors for the Applicant:	Slater & Gordon Lawyers	

The Respondent:	No appearance	

Counsel for the Independent Children’s Lawyer:	Mr Weightman	

Solicitors for the Independent Children’s Lawyer:	Brennan Garrick Lawyers	

ORDERS
(1)	Save for the following orders (2) to (5) inclusive the orders concerning W born (omitted) 1999, X born (omitted) 2000 Y born (omitted) 2002 and Z, born (omitted) 2004 made on 17 August 2012 remain in force. 
(2)	Order 2 of the Orders made on 17 August 2012 is discharged and subject to Order (3) herein the mother shall have sole parental responsibility for the children.
(3)	The mother shall not change the children’s names or relocate the children’s place of residence to a different town without the consent of the father in writing or an order of the court.
(4)	The mother shall advise the father by email or text message within 7 days of any decision she makes about major long term issues for the children. 
(5)	Order 12 of the Orders made on 17 August 2012 is varied to omit all references to Sunday to the effect that telephone communication or face time communication shall take place between the children and each party only on Wednesdays, the children’s birthdays and Christmas Day.
(6)	The mother’s application for changeover to occur at (omitted) is dismissed noting for the avoidance of doubt that the effect of this is that as the extension to the (omitted) Freeway has been completed Order 10 of the orders made on 17 August 2012 which provides for changeovers to occur at (omitted) prevails.
(7)	The mother’s application for the father to be declared a vexatious litigant pursuant to s.118 of the Family Law Act is dismissed.
(8)	If the mother wishes to seek an order for costs she must within 28 days of the date of these orders file and serve an application in a case and a submission setting out the amount of costs sought and the grounds which she submits justify an order for costs and the father must within 14 days of being served with the mother’s application in a case and submission file a response to the application in a case and a submission setting out the grounds which he says justify the dismissal of the application.

IT IS NOTED that publication of this judgment under the pseudonym Jacobs & Jacobs (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT 
OF AUSTRALIA 
AT Newcastle	
NCC 2893 of 2007
MS JACOBS	
Applicant

And

MR JACOBS	
Respondent

REASONS FOR JUDGMENT
Introduction 
1.	Since Ms Jacobs and Mr Jacobs separated more than eight years ago they have quarrelled endlessly about parenting arrangements for their children. Sometimes this has been in court and sometimes it has been in front of the children. 
2.	In her May 2013 family report Family Consultant Ms K expressed pessimism about whether the conflict between the parents would ever end. She said as follows: 
	There is little dispute at to what creates the conflict – the father seeks for the mother to be flexible with the orders and the mother seeks to ensure that the orders are closely followed. Further to this there is a dispute about what the actual orders themselves may mean and there is an ongoing desire on behalf of the father to have the children live with him. These issues subsequently lead to allegations and counter allegations of breaches of the orders.
	Unfortunately the underlying mistrust between the parents is entrenched and the malign intent which is subscribed to what otherwise may be innocuous occurrences appears likely to continue for the forseeable future. Accordingly, it seems the parental conflict and counter allegations are unlikely to abate.
3.	By some miracle in spite of all of this the children are travelling well.   They are sick of the fighting but they have a good relationship with both of their parents. There is no sign of them being alienated from either parent which was a potential risk identified by Judge Baumann when he made the first set of final orders in 2009.
4.	Also despite Ms K’s well-founded pessimism the parties have managed to get through the period from February 2013 to November 2014 without any incident of the kind which has brought the matter back to court in the past.  
5.	The only manifestation of the parents’ quarrel at the moment is the mother’s determination to achieve a reduction in the children’s time with the father. 
6.	Final orders made on 17 August 2012 provide for the children to spend time with the father:
•	on two weekends each school term in (omitted);
•	on two weekends each school terms in (omitted);
•	for the whole of the Term 3 school holidays each year;
•	for half of the Term 1, 2 and 4 school holidays each year; and 
•	on some special days.
7.	The mother proposes that the time in (omitted) cease and that the children spend time with the father in (omitted) on three weekends each year during school terms to coincide with their birthdays (one child’s birthday falls in the Christmas School holidays) and on the Father’s Day weekend.    
8.	The mother also proposes that the children spend only half of the Term 3 school holidays with the father.
9.	The other major changes proposed by the mother were that she should have sole parental responsibility for the children in place of the existing equal shared parental responsibility and that the father should be declared a vexatious litigant. 
10.	The mother sought a number of other smaller changes to the 2012 orders including an alteration to the changeover location, a reduction in telephone time and an order about the parents sharing the cost of orthodontic expenses.
11.	The father filed a response in February 2014 opposing a reduction in his time, an alteration to the order for equal shared parental responsibility and an order that he be declared a vexatious litigant.
12.	In August 2014 the father filed a case outline document in which he indicated consent to the mother having sole parental responsibility and by implication to a reduction in the frequency of telephone communication. He continued to oppose a reduction in his time with the children and indeed sought an increase in time in (omitted) during school terms.  
13.	The Independent Children’s Lawyer did not support a reduction in the children’s time with the father in (omitted) or during the Term 3 school holidays or an order that the father be declared a vexatious litigant. She did however support the removal of the order for time in (omitted) and some of the other minor alterations sought by the mother including an alteration to the changeover location.
The evidence
14.	The mother relied on her further amended response and affidavit filed on 24 July 2014 and the affidavit of her partner Mr G filed on 24 July 2014. I have also had regard to the earlier material filed by the mother in the current round of proceedings.
15.	A Family Report was prepared on 2 May 2013 by Ms K, a family consultant and it was in evidence. Ms K also prepared a report in 2008 and that was in evidence as well.
16.	At the hearing the mother went into the witness box and was briefly cross-examined. Mr G and Ms K were not required.
17.	The father did not attend the hearing but that was not necessarily a negative for him insofar as it indicated a desire to avoid further entanglement in litigation. 
18.	I have read all the material the father has filed since this current round of proceedings commenced and indeed reference was made to it, including to the case outline document he filed in August 2014, by the mother’s counsel and the counsel for the Independent Children’s Lawyer during the hearing. 
19.	Where the father’s non-attendance was a negative for him is that I cannot place weight on any of his evidence in his documents which contradicts factual matters raised by the mother for example about his payment of child support. The mother’s evidence on those issues must stand unchallenged although where that takes the mother’s case is another matter.
20.	The mother’s trial affidavit was poorly drafted. It contained carefully selected slabs of material from Judge Baumann’s 2009 judgment and the 2013 family report, none of which should have been in an affidavit. 
21.	It contained numerous statements which were conclusions without foundation and it contained allegations which were just left hanging in the air. I was told as a broad general statement for example that in 2013 the father failed to respond to a letter the mother sent about the high school Y was to attend in 2015 but was not told how this had played itself out.
22.	Mr G’s affidavit was also poorly drafted. It contained a carefully selected passage from Judge Baumann’s decision (wrongly attributed to FM Housego) and a large amount of material which was not evidence but was speculation, personal opinion and argument. 
23.	The fact that many of the rules of evidence do not apply in parenting proceedings unless the court otherwise orders does not excuse affidavits being filed which contain material other than evidence and are an attempt to argue a parties case, nor does it excuse sloppy drafting, one example of which is the inclusion of broad sweeping statements without foundation which can and should be ignored by the robust cross-examiner and which take the court precisely nowhere.
24.	The fact that the father did not attend the hearing does not mean that I can give such defective material greater weight than it would have been given if he had attended. 
Background
25.	The mother and father commenced cohabitation in 1995, married in 1997 and finally separated under one roof in August 2006. They have four children: W, born on (omitted) 1999 (15); X, born on (omitted) 2000 (14); Y, born on (omitted) 2002 (12); and Z, born on (omitted) 2004 (11).
26.	The parties lived in (omitted) during their marriage. The mother has remained there with the children but about 6 months after separation the father moved to (omitted). 
27.	Judge Baumann in his 2009 decision was satisfied that the family had contemplated a move to (omitted) for the father’s work prior to the separation but that the mother was aggrieved by the father’s decision to relocate on his own after separation.
28.	After the father relocated the children spent time with him by agreement.
29.	In May 2007 the father withheld Y, then 5, after a weekend visit. The mother made a deliberate choice not to press for Y’s return and he commenced spending alternate weekends with her. She told Ms K that this was because she felt under considerable emotional stress at the time.
30.	In October 2007 the mother filed an application for parenting orders seeking among other things a recovery order for Y. On 2 November 2007 the father also withheld W but on 9 November 2007 a recovery order was made in respect to both Y and W and all four children were reunited in the mother’s care. 
31.	On 13 November 2007 interim parenting orders were made which provided for the children to live with the mother and spend time with the father on alternate weekends and during school holidays. 
32.	Judge Baumann conducted a final hearing in respect of both parenting and property matters in March 2009 and made final orders on 10 July 2009. 
33.	The mother’s parenting proposal was that the children live with her and spend time with the father for three weekends each school term in (omitted) and three weekends each school term in (omitted) and that school holidays be shared equally. 
34.	The father proposed either week about shared care if the mother moved to (omitted) or that the children live with him and spend four weekends each school term and half of the school holidays with the mother. 
35.	Both parents sought an order for equal shared parental responsibility.
36.	Judge Baumann noted in his decision that the mother had no intention of moving to (omitted) and that he needed to decide the matter on the basis that the mother would be living in (omitted) and the father in (omitted). He ordered that the children live with the mother and spend time with the father as the mother proposed namely for three weekends a school term in (omitted) and three weekends a school term in (omitted). 
37.	He also ordered, as the mother proposed, that the mother deliver the children to and collect them from (omitted) on the three (omitted) weekends, that changeover take place in (omitted) on the (omitted) weekends and that changeover during school holidays take place at (omitted).
38.	Both parties quickly became resentful and upset about the operation of the orders.   
39.	The father had said to Ms K during the report interviews in 2008 and said to Judge Baumann during the hearing that he could not afford to spend time with the children in (omitted) and would not travel to (omitted) to spend time with them. Ms K’s 2013 report suggests that despite this the father did in fact take advantage of some of the time in (omitted) after the 2009 orders were made but that conflict arose around this because he was not entirely consistent with the visits and that for at least some period of time after the orders were made the mother insisted that it was all or nothing and that if the father did not commit to spending the entire period with the children he could not spend any of it with them. 
40.	Mr G in his trial affidavit echoed the mother’s complaints about the father not always coming to (omitted) and ancillary to that was that the mother began to perceive it as unfair (despite it having been her proposal) that she had to drive to (omitted) three times a term when the father did not always come to (omitted) and she began requesting a change to the order about the collection and delivery of the children. 
41.	Another problem which arose was that Mr G lives in Sydney and the mother sometimes continued on to Sydney after delivering the children to the father. The father found it galling that the mother would insist on him driving to (omitted) to collect the children when she intended to continue on to Sydney rather than agreeing to drop the children off to him on her way past (omitted).
42.	Yet another complication arose in 2010 when the mother was diagnosed with Thyrotoxicosis. She also developed an iron deficiency and in July 2010 her solicitor obtained a letter from the mother’s doctor stating that it was not in the mother’s best interests to do long distance travel.  
43.	In December 2010 the mother was diagnosed with Graves disease and commenced radiation treatment. 
44.	The parties were unable to agree on any change to the orders and the father declined to attend mediation organised by the mother and in August 2011 the mother filed an application seeking to vary the existing parenting orders. 
45.	The mother asserted that the travel she was required to do during school terms was too tiring for her and that it was also too tiring for the children. She said that she had a great deal of difficulty getting the children to school on the Monday morning and that it was particularly difficult for Z.
46.	The father filed a response seeking orders that the children live with him.
47.	The matter was listed for hearing on 17 August 2012 but the parents reached agreement about final orders on that day and orders were made by consent. 
48.	The consent orders ran to seven pages and were very comprehensive. The parties agreed to a reduction in the father’s time with the children in (omitted) from three weekends each school term to two but his time with them during the Term 3 school holidays was increased commencing in 2013 from half to the whole of those holidays.  
49.	The orders provided for changeovers for the time in (omitted) to take place at (omitted) both during school terms and during school holidays until the new link road was completed and thereafter to take place at (omitted) and an order was drafted to try and ensure that the time in (omitted) happened without incident.  
50.	The children spent the second half of the 2012/13 Christmas school holidays with the father in accordance with the orders and he was supposed to return them to the mother on 28 January 2013. On 27 January 2013 however he sent the mother an email making allegations about Mr G who was in the habit of spending weekends with the mother and children in (omitted). He alleged that Mr G had assaulted Y and may have been sexually grooming Z and he stated that he would not be returning the children.
51.	On 29 January 2013 the father filed an application seeking orders that the children live with him, that he have sole parental responsibility for them and that they spend supervised time with the mother. His application was given a return date of 31 January 2013 and on that day I ordered that the children be immediately returned to the mother. 
52.	The children were duly returned and resuming spending time with the father in accordance with the 2012 orders. 
53.	On 22 February 2013 the mother filed a response in which she sought final orders that the children live with her, that she have sole parental responsibility for them and that they spend supervised time with the father at (omitted) Children's Contact Centre.
54.	A family report was ordered and it was prepared by Ms K who had prepared the 2008 report and was released to the parties on 2 May 2013. Ms K discussed alternatives but did not make a clear recommendation save for recommending that the parents not share parental responsibility. 
55.	The parties were not able to reach agreement after the release of the report and on 29 July 2013 I listed the matter for hearing on 16, 17 and 18 December 2013. The parties were ordered to file trial documents by 22 November 2013.
56.	On 5 November 2013 the father filed a Notice of Discontinuance.
57.	On 26 November 2013 the mother filed an amended response in which she sought orders that the father’s application filed on 29 January 2013 be dismissed. She continued to seek orders that the children spend supervised time with the father at (omitted) Children's Contact Centre and she also sought the following order:
	Pursuant to s.102QB of the Family Law Act the father be prohibited from instituting any proceedings pursuant to part V11 of the Act in a Court having jurisdiction under this Act.
58.	The mother attended court with counsel on 16 December 2013. The father did not attend and the mother’s counsel pressed me to hear and determine the mother’s application on an undefended basis. I refused to do so because there was no evidence that the mother’s further amended response and affidavit had been properly served on the father.  
59.	I vacated the hearing date and ordered that the mother be deemed the applicant and that she arrange for a copy of the documents she had filed on 25 November 2013 to be served personally on the father. I ordered that the father file a response and affidavit if he wished to oppose the making of those orders and adjourned the matter to February 2014 for mention.
60.	The father filed a response and affidavit as ordered. His response was somewhat wordy and more like a submission but what could be gleaned from it was that the father wanted the 2012 orders to continue save that he sought an extra weekend per term in (omitted). The father opposed the proposal that he be declared a vexatious litigant.  
61.	When the matter next came before me on 21 February 2014 I spoke to the parties at length about the feasibility of supervised time at a contact centre for children of the ages of these children, the damage the ongoing litigation must be doing to the children and the need to consider whether it was worth incurring further legal costs pursuing the matter given that things seemed to have settled down. 
62.	I stood the matter down so that the parties could carefully consider their positions but sadly no agreement could be reached and I had no option but to list the matter for final hearing.
63.	On 24 July 2014 the mother filed an amended response in which she withdrew her proposal that the father spend time with the children supervised at (omitted) Children's Contact Centre and made the proposals about his time set out in the introduction to this judgment.
64.	The mother continued to seek an order that the father be prohibited from instituting any proceedings under the Family Law Act but sought that order pursuant to s.118 of the Family Law Act, not s.102QB. S.102QB only commenced in July 2013 and does not apply to these proceedings which despite the switch of the mother from respondent to applicant had been commenced in January 2013.
65.	The father filed a case outline document but did not file a trial affidavit and did not attend court on the day the matter was listed for hearing in August 2014. The matter could not be reached that day and was adjourned to 20 November 2014 in Tamworth where the hearing took place, again without the father in attendance. 
The rule in Rice & Asplund
66.	The mother has applied to vary existing parenting orders and in Rice & Asplund Evatt CJ said as follows:
	[The court] should not lightly entertain an application to reverse an earlier custody order.  To do so would be to invite endless litigation for, as counsel for the appellant submitted, change is an ever present factor in human affairs.  Therefore, the court would need to be satisfied by the applicant that there is some changed circumstance which will justify such a serious step.  Some new factor arising, or at any rate some factor which was not disclosed at the previous hearing which would have been material.  These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision.  It is a question of finding that there are circumstances which require a court to consider afresh how the welfare of the children should best be served.  These principles apply whether the original order was made by consent or after a contested hearing. The way they apply, and the factors which will justify the court in reviewing a custody order, will vary from case to case. 
67.	Neither party applied to have the other parties’ application dismissed at a preliminary stage pursuant to what has become known as the Rule in Rice & Asplund when the matter first came back before the court in early 2013 but as Warnick J noted in SPS & PLS and as the Full Court reiterated in Hungerford & Tank when there are existing parenting orders in place the court is obliged to consider whether any changed circumstances justify varying the existing orders even after a hearing has been conducted. 
68.	This is particularly so in this case given that the mother has been the instigator of two of the three applications for final orders and the sole driver of the third application since late 2013. I must be sure that I do not encourage either party to keep litigating in this court by making changes to the orders without good reason. Endless litigation between the same parties is not only a drain on court resources it is costly both financially and emotionally to parties and it necessarily impacts adversely on children by the mere fact that it impacts adversely on their parents. 
69.	In broad general terms the mother proposed the following changes to the 2012 orders:
•	that she have sole parental responsibility for the children;
•	that the orders for the father to spend time with the children during school terms in (omitted) be varied to provide that it only occur 4 times per year rather than 8 times per year;
•	that the provision for the father to spend time with the children in (omitted) during school terms be removed;
•	that the children spend half rather than the whole of the Term 3 school holidays with the father;
•	that changeovers occur at (omitted) rather than (omitted);
•	that the children have telephone or face-time communication with the parent with whom they were not living once per week rather than twice per week
•	that the father could only attend sporting or extra-curricular events for the children if he gave the mother 7 days notice by email or text message and did not interfere with the children remaining primarily in the mother’s care during the events. 
70.	The mother sought other minor changes.
71.	The father, by means of his case outline document, consented to the order for sole parental responsibility and the reduction in telephone time but he did not consent to any other the other changes, and the fact that he has withdrawn from the fray insofar as he did not attend the hearing or file a trial affidavit does not mean that I should automatically make the orders the mother seeks. 
72.	Some of the changes the mother sought, such as a change to the collection time during school holidays from 10.00am to 11.00am and the move of the changeover place 25 minutes further north in her favour, are minor but in King & Finneran Collier J said as follows:
	Simply because the changes sought by the appellant are of a minor nature the threshold test is not reduced. Indeed, the less important or far reaching the change or alteration to orders that is sought to be achieved is, perhaps the more important it is to demonstrate a change of circumstances or fresh circumstances requiring a further hearing to achieve this result.  This is so because the purpose of the rule is to protect the children from exposure to further unnecessary litigation.  If it were open to a litigant to achieve a re-hearing because he were able to argue that the changes he sought were minor and accordingly the change in circumstances or fresh matters that he needed to raise were accordingly reduced, this would produce ridiculous and nonsensical results.
73.	Justice Collier made these observations in the context of considering whether an application should be dismissed at a preliminary stage but the observations are also relevant to a situation where the court is being asked to make changes at the end of a hearing.  
The children’s best interests
74.	Any orders I make about the children must be orders determined by treating their best interests as the paramount considerations and the fact that there are existing orders in place and the undesirability of children being exposed to repeated disputes about their parenting is simply one matter which I have to bear in mind in order to determine the children’s best interests.
75.	To determine the children’s best interests I must have regard to the primary and additional considerations in s.60CC(2) & (3) of the Family Law Act and the primary considerations in s.60CC(2) are: 
a)	the benefit to the children of having a meaningful relationship with both of the children’s parents; and 
b)	the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. 
76.	S.60CC (2A) provides that in applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2) (b). 
77.	The children have a meaningful relationship with both their parents at present in other words a relationship which is significant valuable and important to them and they will benefit from that situation continuing. 
78.	When the parents are not fighting with each other they are upstanding valuable members of the community. The mother is a (occupation omitted) although she was not working at the time of the trial. She does not have drug or alcohol or mental health issues or a criminal record and is eminently suitable to be part of the children’s lives. The father is a (occupation omitted) employed by (employer omitted). He also does not have any drug or alcohol or mental health issues or a criminal record and is also eminently suitable to be part of the children’s lives.
79.	This first primary consideration does not help me to resolve the dispute in this matter however because a reduction in the children’s time with the father as sought by the mother will not prevent the children continuing to have a significant valuable and important relationship with the father. It will certainly reduce his opportunity to be involved with the children but this is better considered in the context of trying to assess the likely effect of any change in the children’s circumstances and in any event as Justice Kay said in Godfrey & Sanders:
	What the legislation aims to promote is a meaningful relationship, not an optimum relationship.
80.	An increase in the children’s time with the father by one weekend each school term will also not make any difference to whether the children can have a meaningful relationship with him.
81.	The children are not at risk of being exposed to or subjected to abuse neglect or family violence in the care of either of their parents.
82.	In January 2013 the father raised concerns about Mr G but as it turned out there was nothing (for example confirmation by any of the children of any serious complains to Ms K, avoidance of the step-father by the children during the observation session, police records about the step-father) which suggested that the complaints had merit and the father by dropping out of the proceedings has chosen not to pursue them. 
83.	The second primary consideration does not assist me either.
84.	The first of the additional considerations in s.60CC(3) is any views expressed by the children and any factors (such as the children's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the children's views.
85.	Ms K provided extensive evidence about the children’s views in her 2013 report. 
86.	W, then 14, told Ms K that he found the travel to (omitted) “boring” and that he did not like missing out on his football when he was in (omitted). However he denied having any worries and concerns in either household, liked his step-parents, thought that his parents were getting on a bit better and fighting less and said that he thought that the parenting arrangements should remain the same.
87.	X, then 13, said that he did not like missing soccer when he travelled to (omitted) but liked going there to “see people” and “do things.” X also said that he had no worries or concerns in either household and liked his step-parents. He gave examples of the parents arguing and said that although it had not happened for a while it was better if they did not talk at changeovers. X wanted to remain in (omitted) with the mother and the only change he wanted to the parenting arrangements was that he spend more time with the father in the school holidays. He wished that the father lived in (omitted) so there would be less driving around and the father could be more involved.
88.	Y, then 11, was somewhat critical of the mother, echoing some of the father’s complaints and he made some complaints about Mr G. He said that he would like to live in an equal time arrangement if the parents lived close enough together and would like to live in (omitted). 
89.	Z, 10, described both parents as “great” and was positive about her step-parents. Z said that she did not like her parents fighting and she did not mind the drive to (omitted). She said that she wanted to live in (omitted) where her friends were and wanted to see her father every second weekend as at present it was a long time between visits.  She said that less time with Dad would be “very bad. I like to see dad as much as mum, but that’s not how it works.”
90.	The mother did not claim in her July 2014 affidavit that any of the children now had different views and she confirmed at the hearing in November 2014 that their views about spending time with their father were unchanged.
91.	The next additional consideration is the nature of the relationship of the children with each of the children's parents and any other persons (including any grandparent or other relative of the children). 
92.	Ms K noted in her report that:
Both parents acknowledge that the children love both parents and enjoy spending time with both of them.
93.	I am satisfied based on both the things the children said to Ms K and the interaction Ms K observed between the children and their parents that the children have a good relationship with each of their parents.  Ms K commented that
	The children were observed in the company of both households. In each observation session the children were seen to interact warmly and comfortably with all involved. There were some disputes between siblings, however the children responded to any gentle correction of the parents as required. There was no indication that any of the children (including Y) were frightened in the company of the stepfather.
94.	I must consider the extent to which each of the children'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 children; and 
(ii) 	to spend time with the children; and 
(iii) 	to communicate with the children 
95.	Judge Baumann noted in his judgment that the father had told Ms K that if orders were made for him to spend time with the children in (omitted) he would not do so. Judge Baumann nevertheless made orders for time in (omitted) as proposed by the mother but ordered that the father give the mother notice if he did not intend to do take advantage of the order on any particular occasion.
96.	It would appear, although it is by no means clear, that after the orders were made in August 2009 the father did not take complete advantage of the order allowing him to spend time with the children in (omitted) but there is a complication here because the father sometimes attempted to spend time with the children for part of the weekend in (omitted) and the mother told him it had to be all or nothing so the extent of his actual failure to come to (omitted) at all is not clear. 
97.	In evidence at the trial the mother said that the father had come to (omitted) to spend time with the children just prior to the trial and had come once in Term 3. As the orders only allow him to come to (omitted) on two occasions each term I cannot read into this a willingness by the father to abandon the visits in (omitted).
98.	The mother complained that the father had sometimes failed to respond when she asked for his input into decisions about the children’s education. The evidence the mother gave about this in her trial affidavit was unsatisfactory, with allegations made but then no information about what had subsequently happened. It is not open to me on the state of the evidence to find that the father has failed to take part in making decisions about long term matters.
99.	I must consider the extent to which each of the children’s parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the children.
100.	The mother said in her trial affidavit that the father was consistently behind with his child support and currently had arrears of about $2,000.00. 
101.	The mother’s evidence is unhelpful in that there is no evidence about whether the father was chronically late in paying or whether arrears have been outstanding for a long period or the extent to which the lag between the payer paying money to the Child Support Agency and the money being paid out to the payee was relevant. Had the mother wanted me to make anything of this she would have needed to provide more detailed information about the situation.
102.	I must consider the likely effect of any changes in the children's circumstances, including the likely effect on the children of any separation from: 
(i) 	either of their 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. 
103.	A reduction in the children’s time with the father would not be in accordance with any of their wishes. They might adapt to it but it might also precipitate further litigation if it led to any of the children feeling resentful about it and deciding that they would like to try a change of residence.
104.	I must consider the practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children's right to maintain personal relations and direct contact with both parents on a regular basis.
105.	The parents live 3 ½ to 4 hours driving distance apart. W said that he found the travel boring but none of the other children complained about it to Ms K in 2013. The travel distance has always been factored in to the orders concerning the children spending time with the father.
106.	The mother said that one of her motivations for filing her application in 2011 was that the children were becoming exhausted and irritable as a result of the travel and that on occasion there was difficulty getting them to school on Monday morning. Mr G also referred to this as an historical problem. However the mother did not assert that it was a current problem, no material from the children’s schools was tendered which suggested that it was a problem and none of the children complained about the travel being tiring when they spoke to Ms K in May 2013. At its highest one of the children said that the travel was boring.
107.	I must consider the capacity of each of the children's parents and any other person (including any grandparent or other relative of the children) to provide for the needs of the children, including emotional and intellectual needs.
108.	The children are being well-cared for by both their parents on a day to day basis. They attend school regularly, they play sport and their parents take them on holidays and on interesting outings. They are not exposed to abuse, neglect or family violence. 
109.	The children have been exposed to conflict since their parents separated. All of the children commented to Ms K in 2013 about their parents fighting and in his 2009 judgment Judge Baumann summarised some of what had occurred under the heading “Incidents in front of the children”. He also referred to findings by FM Housego that the mother had contravened the 2007 orders on three occasions.
110.	Judge Baumann expressed the view that such “disappointing acts of parental conflict” were less likely to occur in the future given that 2 ½ years had passed since the separation but he was wrong. After the 2009 orders were made the parents continued to argue over swapping weekends to suit plans, whether the father was entitled to attend special events for the children in (omitted), which weeks the father was entitled to have the children during school terms (resulting him spending almost no time with them during Term 1 2011), whether the father should be able to have the children for part of the weekend in (omitted) if he could not attend for the whole weekend and whether the mother needed to supply clothing for the children.
111.	This last issue led to a truly horrible incident in July 2012 when the father became angry after the mother dropped the children off to him for a holiday visit because the mother had not sent the clothing he had requested. He took the children to the police station to await the mother’s return to pick them up, the mother refused to come back and collect them and the father eventually drove them home to (omitted).  
112.	Both parents told Ms K they regretted their actions on this occasion and the father said that he had apologised to the children. To his credit he said as follows in his affidavit filed 10 April 2013:
	I refer to paragraph 24(d) and I admit that I should not have returned the children to Ms Jacobs. This was a grave mistake and I accept responsibility for making such a bad decision. I think about this incident often and I have to live with knowing how distraught the children became when I returned them to the police station. After realising the mistake I made, I offered to drive up to (omitted) to collect the children and bring them back to (omitted).
113.	The father behaved badly in July 2012 and also behaved badly in withholding the children in January 2013. He did this on the basis of allegations about Mr G but Mr G had been in the children’s lives for the previous six years and the circumstances outlined by the father in his affidavit did not suggest that an appropriate response to the father’s concerns was to withhold the children, disrupt their start to the 2013 school year and force the mother to ask for a recovery order.  
114.	The father’s actions with the clothing in 2012 and the withholding of the children in January 2013 are examples of the father allowing himself to be carried away by his own emotions and losing sight of the children’s needs.
115.	There have been no incidents like this since January 2013. The mother’s counsel suggested that this might be because the matter was still before the court but the matter was before the court in July 2012 when the father acted out at changeover.
116.	The father has made some concessions in this current litigation (including the major one of conceding parental responsibility) and his failure to take part in the hearing in my view indicates some sensitivity to need to end the conflict so I do have some hope that perhaps the father is finally maturing.
117.	It might seem at first glance that the mother should not be criticised for insisting on compliance with the orders, but her insistence that the father either had to come for (omitted) for the entire weekend or not see the children to all seems to be frank petty and unnecessary and sometimes insistence that telephone calls take place at precise times or not at all can be unreasonable given that court orders cannot deal with all the exigencies of life.
118.	The mother also behaved badly (although not as badly as the father) during the clothing incident in 2012 and her insistence for more than twelve months that the children spend time with the father at the contact centre and her current insistence that the children’s time with the father be reduced notwithstanding that none of the children want it and that there has been no incident since January 2013 suggests that she also has a blunted capacity to provide for the children’s emotional needs. The mother did not reflect at all in her trial affidavit on how a reduction in time with their father might impact on the children, leaving it open to question whether she has any capacity to consider this. 
119.	I must consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children's parents, and any other characteristics of the child that the court thinks are relevant.
120.	In this case there is nothing relevant to this sub-section which needs to be considered separately.
121.	I must consider the attitude to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents. 
122.	Both parents have been wanting in this respect on occasions since separation. 
123.	I must consider any family violence involving the children or a member of the children's family but there is none and nor have there ever been any family violence orders. 
124.	I must consider 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 children.
125.	There is no order I can make which will guarantee this. There was simply no evidence that a reduction in the children’s weekend time in (omitted) during school terms or a reduction in their Term 3 school holiday time or the removal of the time in (omitted) would be orders least likely to lead to further proceedings. An order that the children spend no time with the father would remove any immediate opportunities for conflict but Ms K pointed out that such an order would be very difficult for the children to accept and the mother did not seek it. 
126.	I must consider any other fact or circumstance that the court thinks is relevant. 
127.	The mother complained in her affidavit about the father sometimes being half an hour late for changeovers and about him making his wishes about where the children should live known to children but did not explain how a reduction in the children’s time was likely to solve these problems. It is clear from the family report interviews that the children are capable of making up their own minds about where they want to live.
128.	A final relevant matter is that it is very important for the children’s sake that both parents are discouraged from pursuing applications in this court. 
Parental responsibility 

129.	The parties have had equal shared parental responsibility for the children since the proceedings commenced in 2007. The mother sought an order for sold parental responsibility in 2013 and Ms K in her report recommended that the parties not share parental responsibility.
130.	The evidence in the mother’s affidavit about any consequences of the parties incapacity to discuss and reach agreement about major long term issues was limited and may well not have borne the weight of establishing that there was any need to change the current order about parental responsibility. There was no evidence in the mother’s affidavit that the parents being required to share parental responsibility was causing conflict and the conflict the mother and father both referred to and the conflict which concerned Ms K was over day to day issues and interpretation of the orders, not over major long term decisions.
131.	 However in his case outline filed in August 2014 the father conceded that an order should be made for the mother to have sole parental responsibility and that is the order I will make.
132.	The Independent Children’s Lawyer proposed that there be a limitation to this in that an order be made that the mother be restrained from relocating the children’s residence to a place which was a greater distance from the father’s home than the place where they presently reside.
133.	I do not intend to make that order because it does not take account of the fact that it could allow the mother to relocate the children to Sydney and then distance may not be the problem but travel time. In addition such relocation would require re-negotiation of the changeover place and the parents are incapable to sensibly reaching agreement about such things.
134.	Another issue is that the reason for giving the mother sole parental responsibility is not to allow her to move where she likes but to ensure that decisions about education and counselling are made without dispute or undue delay. If the mother relocated from (omitted) (and while there was no suggestion that she wished to do so the fact that Mr G lives in Sydney suggests a need for some caution) this would open up a raft of new issues such as how the children felt about it and the mother should not be permitted to make such a major change to the children’s lives without input from the father. 
135.	I intend to order that the mother not be permitted to relocate the children’s residence from (omitted) without the consent of the father or an order of the court. This will ensure that before any substantial change takes place to where the children live all the nuts and bolts of how the changed arrangements will work before the change occurs. If that has to be 
Conclusion about whether the other variations sought by the mother should be made 
Telephone communication 
136.	The father implicitly conceded that the telephone communication should reduce in frequency so I will make an order to that effect.
137.	The mother also sought wholesale changes to the communication orders including a requirement that calls be to landlines only and that telephone calls only occur if face-time was unavailable. She provided no reason for seeking those changes and given the prevalence of mobile telephones in our society the requirement for calls to be made to landlines only would need explanation if it was to be justified. 
The children’s time with the father
138.	I am required to make orders which are in children’s best interests. I cannot make them simply because a parent asks me to and none of my findings about the s.60CC matters support orders reducing the father’s time with the children.
139.	As I observed to the mother’s counsel during the hearing there was absolutely no evidence to suggest that such an order would serve the children’s interests.
140.	Reducing the children’s time with the father in (omitted) during school terms would be contrary to their wishes and the mother was unable to explain how the children seeing the father on four occasions each year during school terms in (omitted) rather than eight occasions and taking away the time in (omitted) would protect the children from the emotional abuse she alleged that they were exposed to in the father’s care.
141.	The Independent Children’s Lawyer did not support a reduction of the children’s time with the father in (omitted) but did support the removal of the order for time in (omitted) twice each term. 
142.	Counsel for the Independent Children’s Lawyer submitted that the evidence suggested that the father did not always exercise this time and when he did he did not come for the whole weekend and that this caused some difficulties for the mother and caused conflict.
143.	During submissions I had some sympathy for this proposal but on reflection I am most reluctant to make an order removing this time.
144.	The father has been utilising the time in (omitted) at least to an extent. The mother said in evidence that the father had been up to see the children just before the hearing and had also exercised the time once in Term 3. None of the children want to see less of the father than they do now and there are many advantages to the children in the father coming to (omitted) to see them, including being able to attend sporting fixtures.
145.	In the past the parties’ interpretation of this order caused problems but the August 2012 orders were carefully drafted with a view to dealing with the problems which had occurred up to that point.
146.	There is nothing in the mother’s trial affidavit about the (omitted) weekends or any impact on the children or on her of the order for time in (omitted) remaining in place and therefore nothing in that affidavit which justifies removing it.
147.	Counsel for the Independent Children’s Lawyer submitted that it would be sufficient if an order was made that the father be allowed to attend the children’s sporting fixtures but in the absence of evidence that time in (omitted) is not in the children’s best interests I am not satisfied that there is any justification for removing this time.
148.	In her 2013 report Ms K expressed the opinion that the court would need to:
	Give consideration as to the implementation of orders which are most likely to minimise the impact of the conflict on the children and those orders which are least likely to lead to the re-institution of proceedings.
149.	Counsel for the Independent Children’s Lawyer made an overarching submission that the Independent Children’s Lawyer was supportive of orders which would see the children spending less frequent time with the father as this would minimise the opportunity for conflict. 
150.	The problem with this submission is that there was no evidence that reducing the father’s time with the children by removing the time in (omitted) (which was the only reduction the Independent Children’s Lawyer supported) would have this effect, and as a reduction would be contrary to all of the children’s wishes a possible outcome of reducing the time would be to increase the conflict.
151.	Ms K raised the possibility of there being no term time contact at all and possibly some additional time in the school holidays which would reduce the number of changeovers the parents had to implement. The mother did not propose this however although her proposal to limit the time during school terms and remove the (omitted) time went close to it and the Independent Children’s Lawyer did not support the reduction of the term time in (omitted). 
152.	The mother proposed that the children’s time in the Term 3 school holidays be reduced from the whole school holidays to half. There was no evidence in the mother’s affidavit directed to this issue nor was anything said about it in her counsel’s submissions and the Independent Children’s Lawyer did not support this reduction. 
153.	There is in my view no justification in terms of the children’s best interests or changes which have occurred since the orders were made in August 2012 for reducing the children’s time with the father.  
Changeover location
154.	The current orders provide for the all changeovers except those which take place in (omitted) to take place at (omitted) until the new link road is finished and then at (omitted).
155.	The new link road is finished so changeovers currently take place at (omitted).
156.	In his case outline the father proposed that this continue.
157.	The mother proposed that changeovers take place at (omitted). The Independent Children’s Lawyer supported this and said that (omitted) was only about 25 minutes further on from (omitted) so what difference did it make.
158.	The difference it makes is that the existing order should not be changed without good reason especially in a case where there has been an ongoing dispute about the changeover location since the original orders were made in 2007.
159.	The mother did not provide a shred of evidence in support of her proposal. There was not a shred of evidence that this change would benefit the children or was necessary for the health and wellbeing of their primary carer. I am not prepared to make the order simply because the mother has opportunistically sought to use the re-opened proceedings to move to the changeover location somewhat closer to her home.
Other small changes
160.	The mother sought an order that school holiday time commence at 11.00am on the first day of the holidays instead of 10.00 am and that time commence at 11.00am on Sunday if the children had an extra-curricular activity on the Saturday but gave no evidence about why making these changes would be in the children’s best interests. The parents agreed to detailed orders in August 2012 and making changes like this to the time of changeover after the parents have become used to the 2012 orders is more likely to increase than to decrease conflict. 
161.	The mother sought an order restricting the father’s capacity to attend sporting and extra-curricular events in (omitted) but there was no evidence which justified such an order.
162.	The mother sought an order restraining the father from placing information about the proceedings or adult issues on social media where the children could view the posts but I was not directed to any evidence indicating that this was a current concern and I am not prepared to make the order.
163.	There is no justification for making these or any other small changes to the August 2012 orders as sought by the mother.
Passports
164.	In her further amended application the mother sought an order that she be able to obtain passports for the children without the consent of the father being required. 
165.	Both the 2009 and the 2012 orders make provision for the issue of passports for the children. The mother did not give any evidence that the father had failed to comply with either order or that the wording of the order had caused difficulty or even that she wished to travel overseas with the children. She did not offer any explanation for why this order should now be re-worded.
166.	The mother sought an order that the Registrar of the Court be able to sign a passport application if the father refused to do so but there was no evidence that he had ever refused to do so and in any event this is not the correct way to deal with a situation where one party refuses to sign a passport application. The correct way is to make an order that a parent have liberty to obtain a passport for the children and travel internationally with the children notwithstanding that the consent of the other parent has not been obtained.
167.	There is no justification for changing the existing order about passports.  
Orthodontic treatment
168.	The mother sought an order that the father share the costs of orthodontic treatment for the children. In her trial affidavit she said that she anticipated that Z might need orthodontic treatment in the future. 
169.	Contribution to payment of the orthodontic costs is a child support matter. The mother did not apply for a departure order pursuant to s117 of the Child Support (Assessment) Act nor could she have without providing any financial detail of actual costs on the horizon. If the children need orthodontic treatment in the future and the mother considers that she has a ground for departure she will need to apply to the Child Support Registrar pursuant to s.98S of the Child Support (Assessment) Act in the first instance.
The vexatious litigant application
170.	The mother initially sought an order pursuant to s.102QB of the Family Law Act but prior to the trial she amended her application so as to rely on s.118. S.102QB replaces s.118 but only insofar as applications filed after the commencement of the operation of s.102QB in July 2013 and this application predates the commencement of s.102QB.
171.	S.118(1) provided as follows:
The Court may at any stage of proceedings under this Act, if it is satisfied that the proceedings are frivolous or vexatious
(a)	Dismiss the proceedings
(b)	Make such order as to costs as the court considers just and
(c)	If the court considers it appropriate, on the application of a party to the proceedings – order that the person who instituted the proceedings shall not, without leave of a court having jurisdiction under this Act, institute proceedings under this act of the kind or kinds specified in the order;
And an order made by a court under paragraph (c) has effect notwithstanding any other provision of this Act.
172.	The actual order the mother sought was that the father be restrained from instituting proceedings which can be made under s.102QB but not under s.118 which only allows the court to make an order that a party be restrained from instituting further proceedings without leave of the court.  This is in all likelihood a drafting error and the mother’s counsel submissions on 20 November 2014 suggest that the order he was in fact seeking was that the father be restrained from instituting further parenting proceedings without leave of the court.
173.	In his case outline document mother’s counsel referred to the case of Langmeil & Grange  in which the Full Court said as follows:
	In Zabaneh & Zabaneh (1986) FLC 91-766 Evatt CJ with whom Fogarty and Renaud JJ agreed, explained that the purpose of the provisions “is to prevent multifarious overlapping applications between parties, which amount in essence to a harassment of the other party, and an abuse of process of the Court, and which involve enormous expense for both the parties and the legal aid office.
	Of course, as we pointed out in McNamara and Rose [2007] FamCA 529 frivolous and vexatious proceedings may divert the Court’s resources away from meritorious disputes. It is a serious matter to deprive a person of access to the courts, a point made by Kirby J in Re Attorney-General (Cth); Ex parte Skyring (1996) ALR 29. 
174.	The mother listed in her affidavit 16 occasions on which the parties had been in court and it seemed to be her case that I should infer from all the court events she listed that the father was using litigation to harass her and that he should therefore be declared a vexatious litigant.
175.	However the mother did not present this information fairly. She failed to discriminate between court dates which were hardly the father’s fault (the 2008 contravention application when FM Housego found the mother guilty of several contraventions of the orders, the hearing on 6 March 2007, the delivery of decision on 29 July 2007 and the court date of 16 December 2014 which was wasted because the mother changed her position after the father filed his notice of discontinuance and failed to notify him of it for example) and those which could perhaps be blamed on the father.
176.	It is interesting to note that of all the court proceedings instituted between these parties only three have been instituted by the father: the contravention proceedings of 2008 which resulted in some findings against the mother, the contravention proceedings of 2012 which were dismissed and the January 2013 application which he discontinued. 
177.	The applications for final orders in 2007 and 2011 were made by the mother and the mother has been the driver of the current litigation since December 2013. This is far from a clear cut case of one party harassing the other with litigation.
178.	Counsel for the Independent Children’s Lawyer submitted that the case the court needed to have regard to was Marsden & Winch [2013] FamCAFC177 in which the Full Court after referring to a number of decided cases observed that:
	The s.118 power is enlivened if there are proceedings before the court that the court is satisfied are frivolous and vexatious and those proceedings are dismissed. If an application is then made by a party to the proceedings seeking an order restraining the other party from commencing any further proceedings without leave of the court the court may make the order.
179.	This passage highlights a number of difficulties with the mother’s application. 
180.	First, the father filed a Notice of Discontinuance of his January 2013 application to have the children live with him in November 2013. In some circumstances this might have led to his application being dismissed but in this case because the mother wished to press on with her application that the father should spend only supervised time with the children the result of the father filing the Notice of Discontinuance was that the mother was deemed the applicant and the father was ordered to file a response to her application which he did. 
181.	The father filed a response but then chose not to take any formal part in the hearing but the appropriate way to deal with the matter at this point is not simply to dismiss his response but to consider what orders are in the best interests of the children and then dismiss all outstanding applications.
182.	Second it is not is not open to me to find that the father’s January 2013 application was frivolous and while it vexed the mother it cannot be characterised as vexatious. 
183.	The Full Court in Marsden & Winch reviewed the authorities about the meaning of vexatious in the context of statutory provisions like s.118 and referred with approval to the following passage from the judgment of Roden J in Attorney-General v Wentworth:
	A subjective element such as malice, lack of bona fides or ulterior motive seems to be both appropriate and necessary to give significance to the term “vexatious” in the context of s.84(1). It provides the required “something more” than is conveyed by the other words in the section, and is consistent with legal proceedings instituted either with or without reasonable grounds.....I appreciate that, isolated in context, “vexatious legal proceedings” could mean “legal proceedings which vex”, irrespective of the motives of the person instituting them. A construction requiring purely an objective test might also be applied to the words when used in the expression “vexatious litigant” which also appears in the section, although it would sit less happily there. The construction required for the present purposes, however, is a construction within the context of the section as a whole; and for reasons stated, I would, on first impression, opt for the inclusion of the subjective element.
184.	There is simply no evidence that the father’s January 2013 application lacked bona fides or was malicious or was made for an ulterior motive.
185.	Mr G in his affidavit speculated that the father’s application was motivated by malice against him and a desire to break up his relationship with the mother but it is not open to me on the evidence to find that this is the case. Mr G had then been in the mother’s life for six years and he and the mother both conceded that there was some basis for Y’s complaints about Mr G’s treatment of him although they both contended that the complaints had been hugely blown out of proportion.
186.	The mother has not made out the grounds for an order pursuant to s.118 of the Family Law Act.
Costs
187.	The mother was legitimately concerned about the allegations the father made in January 2013 in connection with Z in particular. The evidence in support of them insofar as it was outlined in the family report was far from compelling and the fact that the father did not persist with the allegations after the report was released which suggests that he recognised himself that they could not be substantiated. 
188.	Some of the mother’s concerns about the fact that the allegations were made appear overblown however. She alleged that she felt uncomfortable seeing mutual friends in (omitted) because she did not know what the father had told them but provided not a shred of detail to give this allegation any life. I cannot find that there is even a suspicion that the father has told them anything and there is absolutely nothing to suggest that the mother’s pursuit of her occupation as a (omitted) is likely to be affected by the allegations. 
189.	The fact that the father made allegations about Mr G and Z and later abandoned them may however be relevant to the issues of costs (with the emphasis on the word “may” as I have not yet heard any submissions about costs). 
190.	In her further amended application the mother sought an order for costs from January 2013 and she repeated her request in her trial affidavit but there has been a lot of water under the bridge since January 2013 and I cannot determine a costs application without the mother providing to the court and serving on the father information about the amount she is seeking and the reason why she says that costs should be awarded, taking into account among other things the outcome of the November 2014 hearing and I will make orders for this to occur should the mother wish to pursue her application.
191.	Offers of settlement are relevant to costs applications and if either party wishes to give evidence about any offers that have been made to settle this matter (including but not limited to what happened on 12 February 2014 they will need to file an affidavit containing this information.
192.	For all of the above reasons the orders of the court are as set out at the beginning of this judgment.
I certify that the preceding one hundred and ninety-two (192) paragraphs are a true copy of the reasons for judgment of Judge Terry

Associate:  

Date: 29 April 2015