Arora & Dash (No 5)
[2024] FedCFamC2F 881
•12 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Arora & Dash (No 5) [2024] FedCFamC2F 881
File number(s): MLC 12416 of 2022 Judgment of: JUDGE O'SHANNESSY Date of judgment: 12 June 2024 Catchwords: FAMILY LAW – parenting – interim hearing following adjournment of final hearing – Father seeking increase in spend time with child on interim hearing – Mother asserts that Father is a serious risk of undermining her relationship with the child – both parties allege family violence – longstanding and continued litigation – Mother alleges systems abuse by Father – restrictions on fact finding in interim hearing – orders for Father’s time to move to overnight – untested family report of assistance to decision. Legislation: Family Law Act 1975 (Cth) s 102NA Division: Division 2 Family Law Number of paragraphs: 43 Date of hearing: 12 June 2024 Place: Melbourne Counsel for the Applicant: Mr Howe Solicitor for the Applicant: MMH Lawyers Counsel for the Respondent: Mr Moisidis Solicitor for the Respondent: Cinque Oakley Bryant Lawyers Solicitor for the Independent Children's Lawyer: Peter Lynch, Peter Lynch Lawyers ORDERS
MLC 12416 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR ARORA
Applicant
AND: MS DASH
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
12 JUNE 2024
THE COURT ORDERS THAT:
1.The Final hearing dates listed for 13 & 18 June be and are vacated.
2.The matter be adjourned to 18 November 2024 for Final Hearing (for an estimated 4 days).
AND THE COURT ORDERS UNTIL FURTHER ORDER THAT:
Interim Parenting Orders
BY CONSENT:
3.The child X born in 2017 (“X”) live with the Mother.
AND THE COURT ORDERS THAT:
4.Commencing 15 June 2024, X spend time with the Father every alternate Saturday from 10.00am until 4pm Sunday.
5.The Mother and Father be restrained from denigrating each other or allowing other persons to denigrate the other parent to or in the presence of the child.
AND THE COURT ORDERS BY CONSENT THAT:
6.Unless otherwise agreed upon in writing via email or text message, all non-school changeovers are to occur with the Mother to deliver X outside the D Shop, E Street, Suburb F, and the Father is to return the child to G Street, Suburb H, at which time the Mother and the Father shall return all clothes, toys, electronic gadgets and the like belonging to the child.
AND THE COURT ORDERS THAT:
7.On or before 4pm Friday 14 June 2024, the Mother provide to the Father, by provision to his solicitors, a form of the power of attorney as annexed to these orders and marked “A”.
8.On or before 4pm Friday 21 June 2024, the Father do all acts and things to properly execute the power of attorney as provided to him in the form of annexure “A” of these orders and provide the original of such document by delivery to the offices of the Mother’s solicitor (Cinque Oakley Bryant Lawyers).
Further directions
9.There be liberty to the parties to apply on short notice to ensure the Final Hearing listed for 18 November 2024 runs efficiently.
10.There be no further material filed after 4 November 2024 (two weeks prior to the trial) unless leave of the court is granted.
11.The parties’ costs of this day be and are reserved.
AND THE COURT NOTES:
A.The Mother’s counsel complains this day of the lack of detail and documents provided by the Father regarding his redundancy payments and transfers of money to and from his mother.
B.The Father’s counsel complains this day that the Mother has not cooperated with a sensible valuation of the jewellery.
C.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure B and these particulars are included in these orders.
D.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
E.Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
F.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
G.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE O’SHANNESSY:
These are the settled reasons of a judgment delivered ex tempore pursuant to section 69ZL of the Family Law Act 1975 (Cth) (‘the Act’). These reasons were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected, citations and/or passages of authorities and evidence added, and an attempt has been made to make the orally delivered reasons easier to read, but the substance is unchanged.
In the matter of Arora & Dash, these are the second reasons that I have delivered this day. I refer to the first reasons, by way of background. Those reasons arose from the application for an adjournment, which itself arose from allegations of substantial non-disclosure of financial information and, indeed, fraud arising from that. I determined that I would not proceed with the final hearing of either the parenting matter, or the property matter, and I determined that I would not separate, or bifurcate, the hearing. Having determined that I would adjourn to a further hearing on 18 November 2024, with priority, and the matter remains fixed for three days (although I remain pessimistic as to how that will pan out).
In these reasons I will refer to X’s parents as ‘the Mother’ and ‘the Father’, notwithstanding that in the earlier reasons I referred to them, with respect, as the Wife and the Husband.
Child spend time arrangements
The ICL and the Father's counsel pressed for a review of X's living arrangements. On 2 October 2023, by consent, it had been ordered as follows:
2. That the child [X] born [in] 2017 (“[X]”) live with the mother.
3. That the child spend time and communicate with the father as follows:-
a.Commencing 7 October 2023, with all such times henceforth unsupervised:-
i. from 10.00am to 5pm each alternate Saturday;
ii. such further and other times as agreed in writing.
The Mother opposes any variation of those arrangements, but if it were to change, she reluctantly offered both the Saturday and the Sunday, at those same times (that is, 10.00am until 5.00pm).
The Father presses that I should order that the child spend each alternate weekend with him, from Saturday at 10.00am until Sunday at 4.00pm, for two months, and thereafter from Friday after school until 4.00pm on Sunday equalling to two nights on the alternate weekend, and then a further order that the matter progress to a three-night alternate weekend from Friday after school, until Monday morning before school.
The Mother opposes any change, on the basis that she says the Father is a serious risk of undermining her relationship with the child. She says that his conduct in the proceedings has been to engage in systems abuse, and that he has caused her financial and emotional harm. She also says that he has, and will continue to, denigrate her to the child.
It is common ground that the child suffers from autism spectrum disorder and the Mother believes he does not have sufficient maturity to express his views independently. She says that the Father undermines the child's relationship with her, that he exercises coercive control over her, and that he continues to financially abuse her. The Father denies those allegations.
Alleged family violence
The Mother also points to, and alleges, family violence towards her, at the hands of the Father. The Father denies those allegations, and points to a number of specific instances of family violence that he has suffered at the Mother's hands. The Mother's allegation of violence troubled the family consultant in the child impact report that was undertaken.
The allegations the Mother makes against the Father are, at least partly, corroborated by a recording, that I infer she made, during an altercation between the parents, and that matter is set out in the police brief, in the statement of Officer J.[1]
6.I listened to the video which was of 2 minutes and 48 seconds long. In the video [Ms Dash] kept asking her husband who I now know as [Mr Arora] about the reasons for hitting [Ms Dash] and in return [Mr Arora] blamed her for hitting him. At 2 minutes 28 seconds, [Mr Arora] stated that next time I won’t hurt you, I will hurt you, remember this. It is the same word used for hurt and kill in [Country K]. The victim explained to me that she took this as “next time I won’t hurt you, but I will kill you, remember this”. The victim told me that she took this threat very seriously and in fear from the husband who has been violent towards her.
[1] Annexed to the Mothers affidavit of 7 July 2024
The part that purports to be a direct translation of the recording the Mother made records each of the parents saying that the other had hit them.
The allegations of family violence that the Father makes include a number of events, and include the allegation that in mid-2018, the Mother became very angry with him and ended up biting his hand. He says he struggled to get his hand out of her mouth. He says he suffered excruciating pain, and that the Mother showed no remorse, and dismissed the event when he tried to talk about it as "whatever". No such event is addressed in the Mother's material.
The Father exhibits a photograph, at page 50 of 113, of a very late reply-type affidavit, that on the face of the photographs, show marks on his fingers which are entirely consistent with bite marks. Through her counsel, this day, the Mother has told me that, "That is not my bite marks on his fingers".
The Father also exhibited some still shots, or photographs, from a video, where he alleged that the Mother had stomped on his laptop intentionally and that she charged him aggressively, trying to take his phone from him. That incident is not covered in the Mother's material. I watched the video that was available on this interim hearing, and that will be an exhibit in these proceedings. The competing events of what was shown in that video are very much disputed. The video includes the Mother moving assertively towards the Father, and pointing to her neck and saying "You hit me". The video shows the Father – at least, it is consistent with the Father retreating, or walking backwards. Of course, when someone is recording themselves in an incident, they may well behave better than they might if they were unaware of being recorded. The point is that there is objective material that, in different ways, corroborates each party's claim of significant violence against the other.
Denigration and alienation
The case put by the Mother today, is that the Father continues to attempt to undermine her relationship and has such a poor opinion of her that, inevitably, he will denigrate her, and undermine that relationship. I make no finding of that today.
The Mother points to the vehement statements of the Father, as to the Mother's personality, in his June 2023 affidavit and points to, in particular, paragraphs 12 and 54 of that affidavit, where in florid language, the Father describes the Mother's motivation as being reprehensible, and seeking to alienate him from the child, and as part of a malevolent agenda.
12.This report is dated 22 March 2023. However, driven by a malevolent agenda, the respondent tactically chose to conceal this report from me, and the court, executing a calculated scheme to keep it hidden till the affidavits were filed for interim hearing on 19 April 2023 to prevent any favourable orders. With this act of intentional deception, the respondent brazenly thwarted the rightful consideration of the critical piece of evidence. The diagnosis contained within the report was a crucial piece of information that needed to be considered during the Interim Hearing on 19 April 2023. Consequently, interim orders were issued based on incomplete information that was unjustly withheld by the respondent showing a blatant and utter disregard of child’s best interest.
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54.It is an inexcusable travesty that cannot be ignored: the respondent, driven by a despicable agenda to pervert the very essence of justice and deprive the innocent child of the profound bond with his own father, deliberately concealed the pivotal report of the ASD diagnosis from both the court and myself. Such a reprehensible act strikes to the core of integrity, trampling upon the noble principles that govern our legal system. By obscuring this vital information, the respondent has flagrantly south to obstruct the child’s ability to experience deeply meaningful moments with his living father. This calculated betrayal of justice must not be tolerated, for it represents a gross betrayal of the child’s fundamental rights and undermines the courts.
In terms of time, those feelings on 21 June 2023, in the affidavit, were considerably tempered in the Father's interview with the family consultant, in the child impact report.
5.Within his application, [Mr Arora] sought to restrain [Ms Dash] from removing [X] from the Commonwealth of Australia for a period of three years, for [X] to live with his mother and spend time with his father each Sunday with a 24-week transition period to progress to overnight. During interview, he reported he would not be opposed to [Ms Dash] travelling overseas if the parties were able to reach an agreement regarding parenting orders. He stated he seeks incremental overnights progressing to a shared care arrangement.
…
14.[Mr Arora] claimed [Ms Dash] angers quickly and the frequency of alleged abuse would be dependant [on] parental and work related stresses. [Mr Arora] reiterated information contained within his affidavit dated 02 August 2023 when alleging [Ms Dash] had bitten him on the hand on one occasion and broke his computer on another. He claimed conflict arose when he worked extended hours or sought to play sport with friends. Referring to [Ms Dash] allegations he stated they were “blackened lies” when commented how women in [Country K] often make false allegations of family violence. [Mr Arora] expressed an opinion [Ms Dash’s] application for an IVO was influenced by her legal representative as a method to gain an “advantage” in any legal proceedings.
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16.[Ms Dash] alleged [Mr Arora] would verbally denigrate her by name-calling and would denigrate her to [X]. She advised [X] was in the home during one alleged incident of violence perpetrated by [Mr Arora] and was observed to be distressed. [Ms Dash] alleged experiencing coercive controlling behaviours and psychological abuse by [Mr Arora] who would blame her for his alleged behaviours, tell her how [to] behave toward him, make threats to inform her family and withhold [X] from her care until she apologised. [Ms Dash] alleged [Mr Arora] has made threats to kill her and reportedly made a similar comment to the police. [Mr Arora]’s alleged behaviours such as choking (strangulation) and threats to kill are high risk indicators for serious harm or lethality when mediated by other risk factors.
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25.At this preliminary stage, the Court may consider reserving any changes to [X]’s current spend time arrangements. The Court may wish to take a cautious approach to spend time arrangements to ensure any increase in spend time is at a pace suitable to [X]’s needs.
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29.[X] may benefit from [Ms Dash] attending counselling in order to process her past relationship with [Mr Arora] and associated trauma. This counselling could also assist [Ms Dash] reduce any associated anxieties she may experience whilst facilitating future spend time between [X] and [Mr Arora].
The Mother relies upon the observations of the DFFH report dated 6 July 2022.
The Department holds concerns for [X] in the full-time care of his father, [Mr Arora] as [Ms Dash] has not shown an understanding in how previously perpetrated family violence and the impact this can have on [X]. Although it is assessed that [X] and [Mr Arora] can remain in contact, parties should be mindful of the possibility of [Mr Arora] influencing [X] negatively against [Ms Dash] given his lack of insight.
Following the Child Impact Report, it is significant that the parties were able to consent to orders, and make orders for time on 2 October 2023 as follows:
THE COURT ORDERS BY CONSENT THAT:
1.That Order 8 of the Interim Orders dated 27 June 2023 and Order 1 of the Interim Orders dated 19 April 2023 be discharged.
2.That the child [X] born [in] 2017 (“[X]”) live with the mother.
3. That the child spend time and communicate with the father as follows:-
aCommencing 7 October 2023, with all such times henceforth unsupervised:-
i. from 10.00am to 5pm each alternate Saturday;
ii. such further and other times as agreed in writing.
4.All non-school changeovers to be at the commencement of time with the father to collect [X] from outside [G Street, Suburb H] and at the conclusion of time the Mother to collect [X] from outside [D Shop, E Street, Suburb F], at which times the Husband shall return all of the clothes, toys, electronic gadgets and the like belonging to the child, and the Wife shall do likewise with such items brought from the father’s place.
5.The mother to continue to attend upon her treating psychologist and follow all lawful recommendations as to her ongoing engagement.
6. That the mother attend and complete a Tuning into Kids program.
7. The mother to undertake a parenting post separation program.
8.The father and mother are to communicate through AppClose, the Parenting App, except during emergencies when communication via telephone or SMS, is permissible. All communications shall be conducted with courtesy and respect and be child focused.
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(emphasis added)
In the circumstances where the Father consented to an order that X live with the Mother, and his application being as previously referred to in the Child Impact Report, at the paragraphs recited above, it appeared that the Father, objectively, could be said to actually be supporting that relationship.
To demonstrate that that was not necessarily so, Mr Moisidis, counsel for the Mother, took me to the Father's affidavit filed 17 November 2023, that is, soon after the orders that he had previously consented to. The Mother's counsel says this is significant, because of the disparity between his position in that affidavit of November 2023, and the apparent support of the relationship in the Child Impact Report.
The Father, by reference to the Mother's parlous financial circumstances, sought to promote a situation whereby the child would live not with her, but with him. And was as follows.
12.Our child, [X], is presently residing with the Respondent in the aforementioned matrimonial home. The potential foreclosure of the property places [X] in a precarious situation, as it exposes him to the risk of homelessness. Since the Respondent does not have any immediate family in Australia and has not made alternate arrangements, this situation could force [X] to reside with individuals who are relatively new acquaintances or in temporary crisis accommodations that may not be conducive to his well-being. Additionally, there has been no indication of Respondent, [Ms Dash], being able to secure a suitable rental accommodation in wake of this concerning development.
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14.In wake of above, the honorable court needs to make appropriate orders to ensure that [X]’s living arrangements are secure and he is not exposed to any neglect. I have a stable place to stay details of which are furnished in my affidavit dated 29 August 2023 bullet 19-23 and I am willing and able to care for [X]. Such an arrangement would not only prevent [X] from facing potential homelessness but would also ensure his continued well-being and stability, which undoubtedly aligns with the best interests of our child and preventing the child from abuse and neglect, in accordance with section 60CC (2) of the Family Law Act 1975.
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21.I seek the Court's consideration for a spousal maintenance order to reflect my current financial capacity and circumstances. I request that the Court determine the maintenance amount , accordingly, providing temporary relief until such time as I can secure suitable employment.
These reasons will not recite all the significant Court events.
I note that the Mother pays for her own legal representation and the Father has the benefit of a section 102NA order, because of the nature of the allegations between the parties, and the compulsory and/or mandatory provisions, of section 102NA.
On the face of it, that procedural history may well corroborate the Mother's allegations of systems abuse and coercive control. Certainly, there has been a lot of litigation.
The family report
The family report was, unfortunately, released very late. But nonetheless, it is a document prepared by an independent expert of considerable expertise and is important evidence in this hearing before me. I do note, and take into account, that the Mother's counsel intends to cross-examine the report writer, and to challenge some of her observations and recommendations. Nonetheless, reciting part of the family report will assist an understanding of my reasons, and so I recite some paragraphs of that report.
9.[X] currently lives with his mother and spends time with his father, each alternate Saturday between the hours of 10.00am and 5.00pm, having commenced this regime in October 2023 with the father/son spend time together increasing incrementally from initially spending time with the child on a supervised basis.
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11.[X] attends [school] where he is in grade one. [Mr Arora] reportedly volunteers at the child’s school two days weekly when he assists with reading. [X] learns swimming on Wednesdays and receives home based occupational therapy each two weeks, and on the alternate week, he consults with his psychologist at her rooms. The parents agree that [X] shows some improvement in his ASD condition. [Ms Dash] states that he is slightly improved in that his ability to express his emotions has improved and he no longer shakes his head rather than use words. Further, that she has learned how to assist him by intervening if the child is having an aggressive episode, either through distracting [X] or helping him calm down. [Mr Arora] claims he observes the child to interact positively with his peers and his is improving academically, something he attributes to his effort in providing [X] with intellectually stimulating experiences.
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75.[X], aged 7 years presents as a most delightful, quietly spoken, polite young boy who arrived at the writer’s office with his mother, had no issue in leaving his mother to be interviewed individually.
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81.When asked if he remembers when his mother and father lived together, [X] said he was just five years old and he grows very quickly. He couldn’t remember what it was like.
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90.When his mother and father deliver him to the other parent “they don’t talk to each other.” He would like it if they did.
91.His father asks him questions like what are you doing in the holidays. He doesn’t ask questions about his mother.
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103.There is nothing [X] would change about either parent to make them nicer or better if he could magically do so.
104.If he had a wish, he would want more time with his father. When asked if he would want one night or two, he said he would want two. When asked if he would like it to be five, he said no, he would prefer it to be two. He later indicated to the maximum level that he would prefer it to be two nights.
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114.When observed formally with his father, [Mr Arora] invited him to [a board game], a game he brought with him to play with on the day. [X] was excited and happy to play, and preferred to stand next to his father rather than sit on a chair while they played together. …
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117.At the end of their play, the writer said it was time for [X] to leave with his mother, and the child became upset, and tearfully said he wished to continue to play with his father.
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119.[X] presents as a most delightful neatly attired seven-year-old boy with large brown eyes. He was a happy and polite child, and while the writer is in no way questioning of his diagnosis, there was little evidence of his ASD symptoms during this assessment.
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123.[X] has had both parents working from home for a significant period of his life, and while he is likely to have been primarily nurtured by his mother, and therefore may have a stronger attachment to her, he is also attached to his father and loves him.
124.It is the writer’s opinion, that [X] has been largely protected from the adult issues and seems to be emotionally free to enjoy his time with each of his parents. His ability to do so lies primarily with his mother, who does not appear to have involved him in her feelings and described negative experiences of his father.
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126.Because [X] loves his father and therefore needs to have a relationship with him, the writer believes there will be no issue in his time with his father increasing, and to include one overnight initially. It is also likely to be in [X]’s best interests to incrementally increase this time to include from the completion of school Friday to the Commencement of school Monday on alternate weekends. The writer is hesitant to support [X] spending time with his father mid-week given his need for consistency during the school week, and is concerned that any benefit could be outweighed by the manner in which this would be disruptive to his mid-week routine.
127.[Mr Arora] presents as an intelligent, loud-speaking opinionated man who tended to dominate the conversation at times. He was cooperative, with the interview process, while animated when describing his relationship and activities with [X]. Others might experience him to be passionate and overwhelming at times. He was observed to become tearful during the father/son interview, and pointed out to [X] that he too was sad the child was leaving. He seems to externalize responsibility to [Ms Dash] and her legal representative for the ongoing legal issues and may lack insight into his own contribution to the pre and post separation adult issues.
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129.Given there is a documented history of physical violence, and a demonstrated history of coercively controlling behaviours, there is significant risk that he will dictate and control future decision-making in regards to [X], and in so doing compromise [Ms Dash] and therefore their son. There is also an identified risk that he will denigrate [Ms Dash] to the child, given the implied criticisms identified in a formal context.
One on one view, in regard to paragraph 129, it would appear that the family consultant was more persuaded by the Mother’s allegations of violence, than the Father’s. This is an interim hearing, and notwithstanding the recent change to the law, it remains the law that on an interim hearing, I should be circumspect about making factual findings.
Decision of time
The ICL pressed the following orders, being the minute of orders sought by the ICL:
1.That the father’s time with the child [X] born [in] 2017 be every 2nd weekend from 10am Saturday until 4pm Sunday commencing 15 June 2024.
2.That the mother and father be restrained from denigrating each other or allowing other persons to denigrate the other parent to or in the presence of the child.
The ICL asserts that these parties have been at war with each other for years, and over many, many interim hearings. He presses that there be a mutual non-denigration order, in addition to the extension of time to an overnight basis.
I am not satisfied of the Father’s case, that it is appropriate at this point to move to one overnight time, then two overnights of time and then three overnights of time. I am not satisfied that the Mother’s proposal of the time being limited to daytime only should continue.
I am circumspect about each party's denial of family violence to the other. However, the independent expert has observed, at least, an appropriate relationship between the Father and X. The other objective fact is that the Father, again, presses for an order that X live with the Mother. I am un-persuaded that the risk of the Father denigrating the child, and undermining the child's relationship, is such that the child's relationship with the Father should be further put on hold, pending the trial.
Balancing all of the evidence, and taking into account an interim hearing and the restrictions on fact finding in that, I am satisfied that the orders that the ICL presses are in the best interests of X.
Further orders
I otherwise adjourn the matter for final hearing commencing 10 am, 18 November 2024. I am pessimistic the matter will be concluded within the three days that has previously been estimated to that and if the matter does not conclude on end of the third day, I will proceed to hear it for as much time as it takes, in that week. It would be my hope to deliver judgment in that week, rather than have to reserve judgment. Whether that is possible, or not, is not yet known.
Opposed application which triggered adjournment
The Father's position is that the Mother, by making the application had ‘zigged’, when she really should have ‘zagged’. And procedurally, the zag that she should have done, rather than the zig that she did, was that she should have used the provisions of the relevant Hague Service Convention when seeking the relevant Country L documents.
I do not doubt what experienced counsel has put to me, of that being an available procedure and, indeed that is still available to either the Father or the Mother, to take advantage of that procedure, if they wish.
In the meantime, without making any finding, I am satisfied that it is in the interests of justice, and will assist both parties in an appropriate hearing, if there is a lawyer in Country L authorised to make inquiries on the Father's behalf. Or, at least, to be provided with such information and documents as the Father would be able to obtain, but that information to be provided to the Mother.
It is important to me that any information and documents obtained by the attorney, be provided contemporaneously to the Father and the Mother, rather than to one of the parties being able to keep something up their sleeve, and provide it to the other. Or even not keep it up their sleeve, just not get around to providing it to the other.
The suggested drafting of the power of attorney, as suggested by Ms M appears to be appropriate, by and large. There is no criticism of the exact provisions, rather it is put that the Mother should have undertaken a different procedure.
I am just going to turn my mind to the wording. In paragraph 1, on page 8 of 10, "To specifically obtain the following documents and information on my behalf". The demand that the Country L bank provide information in English, does not sit comfortably with me. I propose to delete the words "in English".
By all means, the bank can be requested to provide it in English, but I do not think I should request a Country L bank to provide Country L documents in English.
Now, "For the last three years", I am not happy with that. I would prefer "As and from 1 January 2020"; that is the earliest date of the tax return document.
And, again, in paragraph 3, "As and from 15 January 2020". And then in paragraph 4, I am deleting the words "in English". I am deleting from "for the last three years". And number 5, deleting "for the last three years", and put "as and from 15 January 2020". Now, there is a reference to financial years in '20, '21 and '23, but I will leave that alone. But I am going to add paragraph 7, "I do not authorise my attorney to obtain any other documents, or information, except that described in this power of attorney".
I am also going to provide liberty to the parties to apply, on short notice, to ensure the second go at the trial actually occurs this time.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 9 July 2024
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