Mitchell and Mitchell

FEDERAL CIRCUIT COURT OF AUSTRALIA

MITCHELL & MITCHELL

[2014] FCCA 2526

Catchwords:
FAMILY LAW – Parenting – unacceptable risk – protection of children from harm – concession of abuse by parent – psychological and emotional abuse of children – failure to comply with interim and interlocutory orders – open expression of hatred by parent – enlisting children as “co-conspirators” in campaign of hate – credit findings – failure to call witness and Jones & Dunkel inference – waiver of legal professional privilege.

Legislation:

Family Law Act 1975, ss.4, 4AB, 13C, 60B, 60CA, 60CC, 60CC(3)(f), 61DA, 65DAA, 65DAA (5), 65DAC

Evidence Act 1995 (Cth), s.131

Jones & Dunkel (1959) 101 CLR 298
Makita & Sprowles (2001) 52 NSWLR 705
Brandi v Mingot (1976) 12 ALR 551
Manly Council v Byrne and Anor [2004] NSWCA 123
Browne & Dunn (1893) 6 R 67 (HL)
Harrison & Woollard (1995) FLC 92-598
Mazorski & Albright [2007] FamCA 520

Applicant:

MS MITCHELL

Respondent:

MR MITCHELL

File Number:

AYC 255 of 2013

Judgment of:

Judge Harman

Hearing dates:

24, 25, 26 September and 8 October 2014

Date of Last Submission:

8 October 2014

Delivered at:

Albury

Delivered on:

14 November 2014

REPRESENTATION

Counsel for the Applicant:

Ms Dart

Solicitors for the Applicant:

Rama Myers Family Lawyers

The Respondent appeared in person

Solicitor Advocate for the Independent Children's Lawyer:

Ms Wearne of Legal Aid NSW Sydney Central

Solicitors for the Independent Children's Lawyer:

Legal Aid NSW Wagga Wagga Family Law

ORDERS

Discharge all prior parenting orders with respect to the children of the relationship:
[X] born [omitted] 2005;
[Y] born [omitted] 2007; and
[Z] born [omitted] 2010.
The children’s mother [Ms Mitchell] shall have sole parental responsibility the [X], [Y] and [Z].
[X], [Y] and [Z] shall live with their mother.
The children’s father Mr Mitchell shall spend time with [X], [Y] and [Z]:
(a)From 11am Saturday until 5pm Sunday each alternate weekend (and provided that in the event that Christmas Day/Boxing Day falls on a weekend then time pursuant to this order shall be suspended and the following order shall instead apply);
(b)From 5pm Christmas Day until 5pm Boxing Day in each year.
For the purpose of the father’s time with [X], [Y] and [Z], the father shall be responsible for arranging for his mother Mrs M or such other person as may be agreed in writing between the parents, to collect the children from the mother and the father shall be responsible for ensuring the return of the children to their mother by the same person.
Pursuant to section 68B of the Family Law Act 1975 the father shall be and is hereby restrained and injuncted from attending at, approaching or being upon the premises of the school, preschool or day care centre attended by the children or any of them, save for the purpose of attending events to which parents are invited and encouraged to attend and to participate in such events and the father shall, if intending to attend any such event, shall ensure that he has notified the mother in writing not less than 72 hours prior to attendance.
In the event that the father commences future proceedings to spend time with the children, and unless the parties otherwise agree or the Court orders otherwise, such application is to be made not less than eighteen months from the date of these Orders and be supported by:
(a)A comprehensive psychiatric assessment undertaken by a forensic psychiatrist who has read the Family Report and Reasons for Judgment;
(b)A report from a treating psychologist, from a psychologist other than Mr T, evidencing the father’s regular and ongoing engagement in therapy to address:
i)his adjustment to the separation from the mother and the father’s antipathy towards her;
ii)his capacity to appropriately manage his emotional responses;
iii)his anger issues;
iv)his insight into the emotional and psychological harm of his conduct upon the children;
v)his capacity to provide a psychologically and emotionally safe environment for the children if they are to spend time with him.
(c)Evidence that the father has successfully attended and completed:
i)An anger management course;
ii)The following programs through Upper Murray Family Care:
1.   Parenting Orders Program;
2.   Kids in Conflict;
3.   Building new Bridges.
The parties shall have leave to provide to any psychiatrist or psychologist attended in relation to either of them, or engaged to provide psychological support for the children, with a copy of the Family Report and the Reasons for Judgment.
Each parent shall forthwith do all things, sign all documents and give all consents and authorities necessary to ensure both parents’ contact details are recorded with any school, preschool or day care centre attended by the children or any of them as parents and provided that the mother shall ensure that a copy of these orders are provided to such school, preschool or day care centre and their attention specifically drawn to the restraints and injunctions above.
Each parent shall advise the other immediately of any significant illness or hospitalisation relating to the children or any of them, such notice to be given contemporaneous with the event and to include sufficient information and authority to enable both parents to be fully consulted and advised about any treatment decisions and to visit them if hospitalised.
Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same or securely destroyed.

IT IS NOTED that publication of this judgment under the pseudonym Mitchell & Mitchell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ALBURY

AYC 255 of 2013

MS MITCHELL

Applicant

And

MR MITCHELL

Respondent

REASONS FOR JUDGMENT

These are proceedings involving competing parenting applications regarding the future care, welfare and development of three children, namely:
[X] born [omitted] 2005 (aged 9 years);
[Y] born [omitted] 2007 (aged 7 years); and
[Z] born [omitted] 2010 (aged 4 years).
The parties to the proceedings are the children’s parents, namely, the children’s mother Ms Mitchell, who is the Applicant in the proceedings, and the children’s father Mr Mitchell who is the Respondent.
The children’s interests in these proceedings are represented by an Independent Children’s Lawyer.

Allegations of abuse

Those of my generation would recall during the 1970’s being shepherded on mass into their school hall or similar space to watch a film which I recall was titled (or at least depicted) “The Man in the White Holden”. It was a film warning of “stranger danger”.
I do not suggest that stranger danger is any less relevant today than previously. Indeed, tragic circumstances such as those of young Daniel Morcombe remind us all too starkly and painfully of the dangers and perils awaiting children and corrupting their innocence or worse. Conversely, cases such as that of young Luke Batty remind us of dangers closer to home and from within the family.
In the time that “The Man in the White Holden” was watched there was no discussion of the dangers to children lurking within their own families and households. Those dangers were not unknown. We have known for some significant time, for example, that sexual abuse of children is often perpetrated by people known to the child and including within the child’s family structure. It is the examples that involve heinous and unprovoked attacks upon the innocent by strangers, however, which attract the most media attention even in this day and age (perhaps rightly so).
In that past age, roughly corresponding with the commencement of the Family Law Act, there was a very different attitude towards that which occurred within the family. Thus no messages were delivered in the school hall regarding the dangers that potentially awaited children upon returning to and within their own homes.
It would be tempting to mythologise a romantic nostalgia for that time as being one in which children were safe and allowed to be innocent, safe as long as they were home “before the street lights came on”.
The innocence of childhood is a western concept which has its roots in the 19^th century and which arose from a period involving a total lack of childhood innocence and children’s exposure to innocence destroying behaviours from an early age. At the time of the Industrial Revolution and in Victorian times, which spawned such ideals, there were dangers to children on every front through childhood labour (and unsafe work at that), rampant illness and disease (largely the after effects of inequality and poverty) and armed conflict.
Such lack of innocence is reflected in the popular fairy tales of the Brothers Grimm or, in more recent times, the crushing, soul destroying lack of innocence faced by children in unequal, disadvantaged and segregated societies throughout the world.
The concept of childhood innocence has always been founded in privilege. Those below or of the working classes, poorly educated and departing such education as was available to them at an early age to work in shops, factories and mines and assist in the support of the family, did not ever have the benefit or privilege of such “innocence”. To demonstrate the fallacy of the concept one need only look to children in war zones, those subject to and living with extreme poverty, preventable illnesses and diseases and the like. For them there is, even today, little “innocence”. Such children are exposed to the ways of the world and the impact upon them and their families of those ways at and from an early age.
One need not dwell upon these issues in a philosophical sense. Such considerations and dialogues are a matter for different fora and different times.
I have raised the above matters purely as one is caused to reflect, in dealing with cases such as this, upon the fallacy of focusing solely upon the danger to children from strangers and forces external to the family. In this case, as in so many which come before the court, the danger to children has been from their own parents and within their own family.
That is not to suggest that there has, over time, been a change in the fronts upon which children’s innocence is attacked. There is no reason to doubt that children were damaged and exposed to injurious behaviours by their parents prior to the commencement of the Family Law Act in 1975.
At that time, separation and divorce was difficult both legally and socially and thus rarely occurred (for a myriad of complex reasons which need not be unbundled for the purpose of this determination). It was also a time when interference in the “private affairs” of the family was not countenanced, contemplated or considered necessary.
It was within this culture of the family as the private domain, indeed a culture of “domestic secrecy” and collective “turning a blind eye”, that such abuses of children, as are presently being explored by the Royal Commission into institutional abuse, could flourish and remain largely unchecked.
This turning a blind eye towards the private affairs of the family and the institutional and political belief that events that occurred within the privacy of one’s own home should not be the subject of public scrutiny or discussion, allowed abuses such as harsh and excessive corporal punishment to be practised by parents and institutions in locus parentis (such as schools). It was an environment in which parents, even those unhappy and trapped within loveless or abusive relationships, stayed together (for a variety of complex reasons but including, sadly, financial imperatives) “for the sake of the children”.
I do not intend to suggest that one can causally connect the “divorce revolution” that followed the passage of the Family Law Act as responsible for the risks and dangers that children now face at the hands of their own parents. I do not intend that criticism to be made at all. I am simply conscious that as a consequence of changing societal and political attitudes as well as the incidence of separation and divorce (indeed the incidence of children born into relationships wherein their parents have never married or never lived together), that such circumstances now come before the court as “disputes”, whereas previously they did not. Thus the public scrutiny that arises through litigation was simply not present in 1976 when the Family Law Act commenced and when I sat with other bemused and somewhat terrified students learning of the dangers of “The Man in the White Holden”.
In this case what is clear is that the three children of these parents have been abused. They have been abused by their father.
I use the term “abuse” in both its legally defined context (see section 4 of the Family Law Act 1975) and in its broader, lay context.
In these proceedings Mr Mitchell has conceded, frankly and candidly, that his behaviours towards these children have been abusive and have damaged them. I have taken Mr Mitchell’s admissions of “abuse” within the lay context. He is unrepresented and is not necessarily in a position to make an informed concession as to “abuse” within the section 4 definition. However, I am satisfied that abuse has occurred within both the lay and legal definitions.
That these children have been abused has nothing to do with lack of vigilance by government agencies, schools, child welfare officers or the court. The children have been abused by their father whilst in his care and within his home and through his behaviour and actions, so much is conceded.
That these children have been abused and harmed by their father does not, in any way, suggest that he does not love them nor that they do not love him. The coexistence of the children’s love and affection for their father (and their father’s love for them) and the injury which the children have assuredly sustained as a consequence of their father’s behaviour cannot be described as other than a catastrophic conundrum.
There is no allegation that the father has physically or sexually abused these children. However, that does not ameliorate against the reality that they have been abused by their father as he has conceded.
To give a context to that which is conceded by Mr Mitchell as abuse, one must look to the definitions of family violence and abuse contained within sections 4AB and 4 of the Family Law Act 1975, namely:
abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child
Definition of family violence etc.
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member ), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to): the
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b) seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c) comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d) cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family
In these proceedings the evidence of “abuse” by Mr Mitchell arises from one or other or both of the children’s exposure to family violence or neglect.
Neglect does not have a definition within the Family Law Act. Accordingly, one is left to turn to a common English usage definition.
The Macquarie Dictionary defines neglect as “to pay no attention to; disregard; to fail to care for or treat properly; to fail to (do something) through carelessness”. I am satisfied that I need not traverse alternate dictionary definitions and that this will suffice.
As regards the children’s physical care (whether attended to by Mr Mitchell and/or his mother from whom the children receive significant support) there is little, if any, criticism raised in the evidence. However, the physical care of children is far from the only basis of relevance. So much is signalled by provisions of the Act, such as section 60CC(3)(f) requiring an assessment of the capacity of each parent to meet the children’s “emotional and intellectual needs”.
Mr Mitchell’s evidence, which I will deal with in more detail shortly, makes clear, including by concession, that the children have been exposed to significant behaviours by their father which have neglected their emotional and intellectual needs. This has included the children’s right to a relationship with their mother, conceded by Mr Mitchell to be a caring and loving relationship, as well as the exposure of the children to significant anger (as Mr Mitchell concedes “rage”), repeated derogatory comments regarding their mother and the mother’s partner, and a discussion with the children or in the children’s presence of adult issues, the discussion of which (for example, the mother’s sexuality) with children of these ages is entirely unnecessary and inappropriate.
I am satisfied that Mr Mitchell has engaged in neglect of the children’s emotional needs. That neglect is serious both as to the facts and circumstances which constitute the neglect and the period of time over which the neglect of their emotional needs has occurred.

I am also satisfied that the children have been exposed to family violence which exposure has occasioned and continues to present a risk of serious psychological harm. There is a common substratum of fact between the allegations and findings of family violence (and the children’s exposure thereto) and a consideration of neglect. That evidence shall be canvassed in more detail shortly.
I have commenced with a consideration of the context of the allegations of, indeed, admissions of abuse as it assumes some fundamental significance to the determination of the matter and gives some appreciation and understanding to the position advanced by each of the parties and the Independent Children’s Lawyer. That is not to suggest that the determination of risk and the finding of abuse that will be further elucidated shortly are conflated with a determination of the children’s best interests at large. It is not. It does however, as is submitted by the Independent Children’s Lawyer, assume great significance in that the children require protection from further exposure to that abuse, which protection is fundamentally and inextricably linked and connected with the children’s best interests, but not solely defining or determinative of those interests.

Material considered

In dealing with the proceedings I have read and considered each of the documents identified by the parties together with the various exhibits which have been tendered into evidence.
In the case of Ms Mitchell I have read and considered each of the documents as filed being:
a)Initiating Application filed 19 July 2013;
b)Form 4 Notice of Child Abuse, Family Violence or Risk of Family Violence filed 19 September 2014;
c)Affidavit of Ms Mitchell affirmed 11 July 2014 and filed 14 July 2014;
d)Affidavit of Ms S affirmed 10 July 2014 and filed 11 July 2014;
e)Affidavit of Ms Mitchell affirmed 6 October 2014 and filed the same day; and
f)Affidavit of Ms S affirmed 7 October 2014 and filed the same day.
In the case of Mr Mitchell I have read and considered each of the documents filed by him in these proceedings and comprising:
a)Response filed 6 September 2013;
b)Affidavit of Mr Mitchell sworn 6 September 2013 and filed the same day;
c)Affidavit of Mr Mitchell sworn or affirmed 17 November 2013 and filed 18 November 2013;
d)Affidavit of Mr Mitchell sworn or affirmed 9 May 2014 and filed the same day;
e)Affidavit of Mr Mitchell sworn or affirmed 14 August 2014 and filed the same day;
f)Affidavit of Mr Mitchell sworn or affirmed 15 September 2014 and filed the same day;
g)Affidavit of Mrs M sworn or affirmed 14 November 2013 and filed the same day;
An affidavit had been filed in these proceedings by a Ms H. Ms H is the “partner” of Mr Mitchell. Ms H’s affidavit was not relied upon by Mr Mitchell and thus has not been read or considered.
Ms H was present for significant portions of the hearing and was thus clearly available to be called and give evidence. On that basis I am invited to and will draw a Jones & Dunkel inference with respect to any evidence relating to the relationship between Mr Mitchell and

Ms H, and will disregard any suggested corroboration Ms H could give to the evidence of Mr Mitchell. I propose to draw the inference that is available as a consequence of his failure to call her, namely, that her evidence would not, if called, have been of assistance to him.
In addition to the evidence of the parties, I have also had the benefit of a significant number of exhibits in the proceedings comprising:
a)Exhibit A1 clinical neuropsychologist reports with respect to the mother;
b)Exhibit A2 a transcript of evidence from an interim hearing in these proceedings conducted by Judge Henderson 25 September 2013;
c)Exhibit A3 correspondence from the mother’s attorneys to the father’s attorneys dated 9 August 2013;
d)Exhibit A4 a surgery consultation of the father recorded by Dr M dated 28 April 2011;
e)Exhibit A5 material from [school omitted] dated 9 September 2013;
f)Exhibit A6 correspondence from the mother’s attorneys to the father’s then attorneys;
g)Exhibit A7 a Statutory Declaration of Ms Mitchell 27 November 2012;
h)Exhibit A8 a transcript of various text messages between the parents;
i)Exhibit A9 notes from the Hume Riverina Community Legal Service with respect to the father’s attendance upon that service;
j)Exhibit A10 records with respect to the father’s attendance upon Dr T 26 February 2013;
k)Exhibit A11 a printout of material from the father’s Facebook page;
l)Exhibit A12 an email forwarded by the father to the mother 6 May 2013;
m)Exhibit A13 an Amended Minute of Proposed Order sought by the mother;
n)Exhibit A14 entries from a communication book maintained between the mother and paternal grandmother up to and including August 2014;
o)Exhibit A15 various notes from the children’s school;
p)Exhibit ICL1 occupational therapy reports with respect to the mother;
q)Exhibit ICL2 a report from a child psychologist Ms B;
r)Exhibit ICL3 certain records with respect to school attendance and school records generally for the child [X];
s)Exhibit ICL4 various records from Mr Mitchell’s treating medical practitioner;
t)Exhibit ICL5 a record of absences and other notes with respect to [Z]’s preschool attendance up to and including May 2013;
u)Exhibit ICL6 various letters forwarded by the Independent Children’s Lawyer to the father requesting urinalysis (in accordance with an order made by the Court requiring that the father undergo urinalysis or drug testing of some form);
v)Exhibit ICL7 notes from a treating psychologist for the father Mr T;
w)Exhibit X a Family Report prepared by Family Consultant Ms D.
Prior to hearing I had received a case outline document from counsel for the mother and the Independent Children’s Lawyer and those documents have also been considered.
At the conclusion of evidence oral submissions were made by each party and by the Independent Children’s Lawyer. Those submissions have also been taken into account.

The proposals of the parties

The orders that are sought by the parties in their respective application or response bear little resemblance to that which is, in fact, sought by them at the conclusion of the trial.
By her Initiating Application the mother sought orders for equal shared parental responsibility, for the children to live with her and for the children to spend alternate weekend time with the father, from after school Wednesday until before school the following Monday, together with periods during school holidays and other special events. Thus the mother had initially proposed orders for shared time.
At the outset of the trial it was made clear by the mother’s counsel, in opening the mother’s case, that the mother would urge the Court to make orders which would have the effect of suspending all time and communication between the children and their father for a period of six months or so before time would then resume on a supervised basis.
By the close of trial the mother’s position had further varied and such that relief was then sought in accordance with the Minute of Order exhibit A13 and being:
a)An immediate suspension of the father’s time with the children;
b)An order for sole parental responsibility in the mother’s favour;
c)A variety of injunctions and restraints pursuant to section 68B of the Family Law Act 1975;
d)A requirement for the father to undergo psychiatric assessment and engage with ongoing psychological treatment prior to filing any fresh application to pursue orders for time with the children.
The father’s position is somewhat less clear.
By his Response filed 18 November 2013, Mr Mitchell sought that the parents have equal shared parental responsibility and that the parties spend equal time with the children (on a week about basis).
In closing submissions Mr Mitchell appeared to maintain his position, consistent with his Response, for an equal time arrangement. However, the submissions put by Mr Mitchell could also be interpreted as suggesting a plea for alternate relief such that in the event that the court were not satisfied that an equal time arrangement should apply, that a shared care arrangement should apply, representing a continuation of orders made by Judge Henderson 25 September 2013 (which would, on the basis of the continuation of those orders, see the children spending from after school Wednesday until before school Monday each alternate weekend with their father and the balance of their time with their mother). Mr Mitchell urged the court to make an order for equal shared parental responsibility.

History of proceedings

The case outline document filed by the Independent Children’s Lawyer contains a substantial and largely neutralised and non-contentious chronology of events. Accordingly I adopt and incorporate that chronology herein.

Date Event

[omitted] 1974 Father born

[omitted] 1978 Mother’s partner Ms S born

[omitted] 1979 Mother born

2001 Mother alleges she and father began living together.
Father says they began living together in 1999.

[omitted] 2004 Parties were married.

[omitted] 2005 [X] born (currently aged 9)

[omitted] 2007 [Y] born (currently aged 7)

September 2007 onwards Mother develops acquired brain injury as a result of staph infection. Father stopped work to care for mother and the children.

January 2008 Mother returns to work minimal hours.

March 2008 Father returns to full time work.

[omitted] 2010 [Z] born (currently aged 4)

17/08/2012 Parties separated. Mother moved out of shared rental accommodation, Mr Mitchell remained living there. Mother moved to 3 bedroom townhouse in [omitted].

27/08/2012 Mother collected children from school and childcare, parties agreed that father would deliver their suitcases to her home that afternoon. Father subsequently came to her house, collected children, only allowed mother supervised visits.

7/09/2012 Section 60I Certificate issued.

Mid September 2012
Father allows mother to spend time with children on a regular basis. Agreed that mother would pick up children from school/childcare each weekday and spend time with them until 6.00pm each weekday and then time with mother each alternate weekend from after school Friday until 6.00pm Sunday.

Mother said she would like kids overnight, father said no because his parenting payment would be cut. Said that if she saw them outside those times she won’t see them at all.

October 2012 Father contacts mother and tells her he has contacted lawyer for defence in her personal injury matter to have him appear as witness against her.

20 October 2012 Mother introduces her partner [Ms S] to the children as her friend. Children now aware that [Ms S] is her partner.

13 November 2012
Participated in Legal Aid Conference.

Mother claims she and father reach interim agreement that children will live with father and spend time with mother each Wednesday overnight and each alternate weekend from Friday afternoon to Monday morning.

November 2012
Mother alleges father unilaterally changed arrangements: she was told to pick kids up at his house rather than his mothers; he enrolled kids in a new school without her permission.

Father claims he doesn’t think he was bound by heads of agreement because the mother unilaterally altered the agreement previously.

Late November 2012 Police lodged AVO against father for the mother’s protection.

Late 2012/early 2013 Parties agreed to change arrangements for children. They agreed that the mother would spend time with the children each alternate week from Wednesday afternoon to before school Monday.

17/12/2012 Interim AVO made against father. After this parties agreed mother would spend time with kids from Wednesday afternoon until Monday morning.

25/02/2013
Father claims [Ms S] put [X] in a cold shower with his pj’s [pyjamas] on and he had no other pj’s [pyjamas] to wear so he went to bed in his undies and he was really cold. Father alleges [X] told him this and that it occurred because he wouldn’t do as [Ms S] told him to.

Mother says this happened in December 2012, that [X] became irrational and angry, couldn’t calm him down and he was so angry he kicked a hole in the wall. They put [X] in shower and he calmed down. She then snuggled [X] in bed. Said that she acknowledges situation could have been handled better. No such incident has occurred since.

June 2013 Parties had ongoing issues as father refused mother time with kids.

1 July 2013
Mother alleges father refused to allow her to spend any time with the children. Mr Mitchell did not respond to her attempts to contact the children.

Father says he turned off his phone so he wouldn’t have to be harassed by the mother.

10/07/2013 Father takes children to Dr E and says that [X] and [Y] told Dr about abuse. Dr reported this to DOCS.

July 2013 Father claims he stopped mother from having all three kids for more than every second weekend and the occasional day time visit on the basis of his concerns due to her declining mental health. Wants her to have supervised visits only. Mother did not see the children for three weeks.

19 July 2013
Mother files initiating application in FCC [Federal Circuit Court] requesting orders on interim basis for the following

-   ESPR [equal shared parental responsibility] between parties.

-   That the children live with the father.

-   Spend time with the mother during school term in each alternate week from after school.

-   Wednesday until before school on Monday.

-   Half school holiday periods.

-   All other times as agreed.

On a final basis she sought the following:

-   ESPR [equal shared parental responsibility] between parties.

-   Children to live with the mother.

-   Children to spend time with the father each alternate week from after school Wednesday until before school on Monday.

-   Half school holiday periods.

-   All other times as agreed.

22/07/2013 Mother says she attended the children’s school. Hasn’t seen children in three weeks.

5/08/2013
Orders that provided inter alia:

-   Parties to attend CDC [child dispute conference].

-   Matter for interim hearing 25/9/2013

-   ICL [Independent Children’s Lawyer] to be appointed.

9/08/2013
Following first return date, mother’s solicitor sent proposal to the father to organise supervised time with children and communication via phone. She didn’t admit need for this but wanted to see kids. He refused to agree as the supervisors proposed were not independent. His solicitor proposed a fee for service basis to avoid waiting list at contact centre. Mother could not contact children via father’s mobile number and he had not provided her with a new one. Mr Mitchell’s solicitor did not provide a response to correspondence.

Issues with regard to father completing intake process at contact centre.

Mother not able to communicate with children via phone from 5 August 2013 until September 2013.

Father says he suggested getting a phone for the children.

21/8/2013 NOAS [notice of address for service] for Nicole Dwyer ICL [Independent Children’s Lawyer] filed.

6/9/2013
Father files response seeking:

-   Parties have ESPR [equal shared parental responsibility] for children.

-   Children live with father and spend time with mother on supervised basis pending assessment of her cognitive function due to brain injury.

-   Sought various property Orders as well.

25/09/2013
FCC [Federal Circuit Court] Orders providing for, inter alia:

-   The parents have ESPR [equal shared parental responsibility] for the children.

-   That the children live with the mother.

-   The children spend time with the father as follows:

o   Each alternate week from after school on Wednesday until before school on Monday.

o   One half of school holiday periods.

o   One half of Christmas school holiday period.

-   Various other orders regarding time for father to spend with children.

-   Non-denigration order.

-   Changeover arrangements.

-   Father to attend personal counselling, with counsellor nominated by ICL [Independent Children’s Lawyer].

-   Father to undergo drug testing.

-   Communication orders about medical issues.

September 2013 Father has not paid the mother child support since the children came into her care.

3/10/2013 Father gets report from Dr C saying he is not suicidal.

5/10/2013 Mr Mitchell did not call to speak with children as provided for in the orders. He has not called the children since this time.

8/10/2013
Father did not attend CDC [child dispute conference].

Mother did attend CDC [child dispute conference].

10/10/2013 Mother phoned the mobile to speak with the children on four separate occasions between 6:30 – 7.00pm. None of the calls were answered and she believes the phone was switched off.

14/10/2013 Father fails to comply with changeover Orders.

18/10/2013
Mother filed application in a case seeking interim orders that:

-   The Orders 4-9 made by FCC on 25/9/2013 be discharged.

-   Sole PR [parental responsibility].

-   That the father spend time with the children supervised at the contact centre for two hours per fortnight and other times as can be facilitated by the Centre.

-   That the father pay the wife’s costs of an incidental to this application.

22/10/2013 Loretta Terrill files Notice of Withdrawal as Lawyer for the father.

18/11/2013
Father files a response seeking the following:

-   That the parties have ESPR [equal shared parental responsibility] for the children.

-   That the children live with both parties for equal time in week about arrangement.

-   Children spend time with mother for one half of school holidays.

-   All other terms as per initiating application filed on 19/7/2013 by the mother from and including sub point 3.

-   As per final orders.

18/11/2013 Mother’s solicitor received email from Mr Mitchell in a response to a letter they had sent him. Email said “ No worries, let Ms Mitchell know that [name omitted] who we had the 3 way orgy with has tested positive to aids - she may want to get tested…”Mother claims that the statement father made was false and that it was said to belittle or embarrass her.

20/11/2013 ICL [Independent Children’s Lawyer] requests father to undertake drug testing. To date no results have been received.

26/11/2014
FCC [Federal Circuit Court] Orders:

-   That the parties attend upon a family consultant for preparation of a family report.

-   The parties send copies of all of their court documents to the report writer.

4/12/2013 Mother’s solicitor sent letter to father. He responded “piss off”.

19/12/2013 ICL [Independent Children’s Lawyer] requests father to undertake drug testing. To date no results have been received.

January 2014 Mother says [X] said “I tell Dad I don’t like it at your house but I do. I like it the same but I can’t tell dad that or he will get mad. Sometimes I miss you but I can’t say anything. I have to go to my room, or cry in my bed.

Late January/Early Feb
Mr Mitchell left mother several nasty telephone messages over several days. Transcript of those messages attached to affidavit.

February 2014 [Ms S] says she picked up [X] and [Y] from school and [Y] said to her “Dad says I have to tell the court lady that I want fifty fifty time”. [X] immediately said “shut up [Y], don’t talk about it. You are gonna get dad in trouble”. [Y] then said “I can tell them things if I want to. You tell dad things about them so why can’t I tell mum things if I want to”. [X] replied “I do not [Y] you are the one that says mean things about mum and [Ms S] not me”.

Between Feb and April 2014 Mother says that the children would argue and dob on each other, telling [Ms S] and her what the others had said about them while they were with their father.

April 2014
Mother says that on 3 occasions during April the children said “dad told us to catch the bus to his house from school”.

Father responds with “no law in this world that makes someone be nice to their ex-wife”.

11/04/2014 ICL [Independent Children’s Lawyer] requests father to undertake drug testing. To date no results have been received.

16/04/2014 (report prepared) Released on 5/5/2014.
Family Report – completed by Ms D 16 April 2014.

Recommendations in regards to interim arrangements:

1.   That the family report be released to the parties at the next court date.

2.   That the children’s current living arrangements be suspended

3.   That children live with the mother

4.   That children’s time with the father be supervised by contact centre.

5.   That father undergo sustained course of psychological counselling.

6.   That [X] and [Y] continue to attend psychological counselling.

7.   That the father not be permitted to attend the children’s school.

8.   That arrangements be made for the children to have telephone communication with PGM [paternal grandmother] and paternal aunt in relation to [Y].

9.   That if feasible, that arrangements be made for the children to STW [spend time with] PGM [paternal grandmother] separate from the father.

10. That the mother and father complete the parenting Orders Program and the children the Jigsaw program.

11. That the father undergo clinical psychological assessment and follow any recommended treatment program and/or that an expert family report including a psychological assessment of the father be completed prior to final hearing.

5/05/2014
FCC [Federal Circuit Court] Orders providing for the following:

-   That the family report be released to the parties.

-   That the applicant shall by close of business on 8/5/2014 file and serve an application in a case and affidavit material in support of such interim relief that is sought.

-   That the matter be listed for further mention and directions and possible interim hearing on 12/5/2014.

-   Noted that during the adjourned period the father undertakes not to attend the children’s school or day care.

5/05/2014 Children told mother that Mr Mitchell would be at school that afternoon to pick them up and they could choose who they went with. This was a day when mother was due to collect children.

8/05/2014
Mother files Application in a Case seeking the following:

-   That orders 4-7 inclusive of the Orders made by FCC [Federal Circuit Court] on 25/9/2014 be suspended.

-   That pending further order the children STW [spend time with] father at supervised contact centre for 2 hours per fortnight and at such times and on such days as may be accommodated by the Centre.

-   Arrangements for facilitating the above time arrangements.

-   That the father undergo sustained psychological counselling.

-   That leave be granted to ICL [Independent Children’s Lawyer] to provide copy of the FR [family report] to the father’s counsellor.

-   That the father be injuncted and restrained from attending at the children’s school or day care.

-   That the parties and Ms S go to the Upper Murray Family Care for intake for completing of the POP’s [parenting orders] program. They will do what is required to participate and complete such program.

-   That the father be restrained from distributing or dissemination any of the material produced, prepared or filed in these proceedings, save for to his legal advisor for the purposes of obtaining family law advice.

8/05/2014 Mother says that Mr Mitchell left a voice message on her mobile threatening that he would contact the defence in her personal injury claim.

May 2014
Mother was putting [X] into bed and he talked about 50-50 time with the father.

Incident at McDonalds with [Y]. Father raises voice at [Ms S], [Y] was scared.

9/05/2014
Father files Response to an Application in a Case seeking:

-   ESPR [equal shared parental responsibility] and week about arrangement.

9/05/2014 Father provides undertaking that he will not discuss mother in any way with his children.

12/05/2014
FCC [Federal Circuit Court ]Orders, inter alia:

-   Pending further Order, each party is restrained from discussing with the children any aspect of the family report, any issue relating to the other parent or matters that occur within the other parent’s household or any issue or allegation raised by anyone in these proceedings. (pursuant to 68B Family Law Act).

-   Father top [sic] provide ICL [Independent Children’s Lawyer] with details for counsellor, psychologist that he is attending together with an authority for ICL [Independent Children’s Lawyer] to speak with that person.

-   Father to attend appointments with that person not less than fortnightly and pending further Order.

-   Parties to go to Upper Murray Family Care enrol and complete POP’s [parenting order] program.

-   Matter listed for final hearing 24-26 September 2014.

15/05/2014 Children began attending counselling with Dr B.

10/06/2014 Mother putting [Y] to bed, [Y] starts talking about 50-50 time.

5/07/2014 Mother called the children to speak with them, [Y] answered the phone and was laughing. The mother asked her what was so funny and she said “when you ring it comes up on dad’s phone as ‘[first name omitted] the mole’.

10/07/2014 [Ms S] talks about [Y] stealing and lying.

Following Orders being made the children have continued to talk about having 50-50 time with the father, that the mother wants the kids to herself, that [X] doesn’t have to do homework at the father’s house until it’s 50/50.

Father denies he is putting any pressure on the children about the 50-50 arrangement.

31/07/2014 ICL [Independent Children’s Lawyer] requests father to undertake drug testing. To date no results have been received.

29/08/2014 ICL [Independent Children’s Lawyer] requests father to undertake drug testing. To date no results have been received.

The proceedings were commenced, as would be apparent from the above, by an Initiating Application filed 19 July 2013.
The final hearing of the proceedings concluded 8 October 2014.
Whilst it is regrettable that a period of some 15 months has passed from the commencement of the proceedings to the conclusion of the proceedings this is, in reality, an expedited disposal of the matter. The proceedings have, at all times, been dealt with on a regional circuit of the Court.
The pressures of work within this circuit, comprising a case load equivalent to a full-time judicial officer’s caseload, are such that delays of this nature are inevitable. Indeed, the expedition of the matter, following the release of the Family Report and the filing of an Application in a Case by the mother (seeking a suspension of then extant interim parenting orders), has seen the matter reach a conclusion in a timeframe that, in light of the available resources, is little short of extraordinary. It has, however, been at the cost of other litigants in other matters before the Court. That is not, in any fashion, to begrudge these parties of such resources. The issues raised in these proceedings, as would be apparent from the findings of abuse made above and to which I will return in due course, compels the determination of the proceedings with such resources and such expedition as can be made available.
Prior to commencing proceedings the parties had attended Family Dispute Resolution. As the evidence demonstrated, the parties would, appear to have reached a resolution of issues between them at Family Dispute Resolution. A parenting plan was prepared and signed by the parties and that parenting plan is before the Court in evidence. The parenting plan provided for a shared care arrangement between the parties.
Within a short period (days if not weeks) Mr Mitchell had resolved to or circumstances had arisen which caused Mr Mitchell to resile from the agreement which had been reached. The children were then withheld by Mr Mitchell from their mother (both as to spending time or communicating with her in any meaningful way), for a period of approximately three months. During this period and as a consequence of those events Ms Mitchell commenced these proceedings.
The matter first came before the Court on 5 August 2013. On that date the parties were directed to attend a Child Dispute Conference with a Family Consultant in Albury, directions were made for the filing of material, an Independent Children’s Lawyer was appointed, and a date for interim hearing fixed by video-link between the Albury and Parramatta Registries. Thus each and every resource available to litigants and to assist in the conduct of litigation was made available.
On 25 September 2013 an interim hearing was conducted. Orders were made which provided for the parents to have equal shared parental responsibility for their children, for the children to live with their mother and to spend time with their father each alternate weekend from Wednesday afternoon until the commencement of school the following Monday, together with periods during school holidays. Those orders were, substantially, in accordance with the mother’s application and clearly supported by the evidence then available and to which I will turn in due course.
The orders made 25 September 2013 signalled the communication difficulties and other issues of concern which were then apparent. Thus orders were made which:
a)Provided for changeovers to occur at the children’s school or, if the school were not available, through a children’s contact service, and, if that service were not available, at the [A] Police Station;
b)Restrained both parties from denigrating the other or members of the other’s household as well as restraining each party from discussing the proceedings with, in the presence of, or within the hearing of the children;
c)Required that the father attend personal counselling with a counsellor nominated by the Independent Children’s Lawyer;
d)Required that the father submit to random supervised blood tests with respect to allegations of chronic marijuana use; and
e)Restrained the mother from allowing her partner to physically discipline the children or any of them.
The proceedings were otherwise adjourned for further mention and possible interim hearing to 26 November 2013.
On 26 November 2013 neither party nor the Independent Children’s Lawyer sought to raise or press any application for further interim relief. Orders were made to advance the matter towards trial including an order for the preparation of a Family Report.
The Family Report was prepared within the timeframe requested and was produced 16 April 2014. The report recommended that as a consequence of matters of concern which had arisen during report interviews that:
a)The report be released to the parties and their legal representatives upon the next listing of the proceedings rather than being administratively released by orders made in Chambers (as would usually occur); and
b)All arrangements for time and communication between the children and their father be suspended forthwith.
Immediately following the release of the Family Report to the parties 5 May 2014 an application was made by Ms Mitchell, as recommended by the Family Consultant, to immediately suspend all time between the children and their father.
On the basis of the mother’s oral application made 5 May 2014 the proceedings were adjourned for a short period (to 12 May 2014) and directions made for both parties to file material. That was attended to by the mother 8 May 2014. During the brief adjourned period

Mr Mitchell undertook to not attend at or upon the children’s school or day care centres.
On 12 May 2014 all extant applications were consolidated and listed for hearing to commence 24 September 2014 and to continue until completed. Orders were also made to facilitate the provision of information by the parties to the Independent Children’s Lawyer as well as orders:
a)For the personal protection of the children. This comprised an order pursuant to section 68B of the Act restraining each party from discussing with the children or any of them anything contained within the Family Report, any issue relating to the other parent or matters that occur within the other parent’s household or any issue or allegation raised in the proceedings;
b)Pursuant to section 13C of the Act requiring that the parties forthwith attend upon Upper Murray Family Care to enrol in and attend (subject to assessment of suitability) the Parenting Orders Program; and
c)For preparation for trial including the filing of affidavit material.
The matter proceeded to trial 24-26 September 2014 inclusive. The matter was not concluded within that time and was, accordingly, adjourned for a fourth day of hearing, by video-link between Albury and Parramatta Registries, 8 October 2014.
At the conclusion of the hearing 8 October 2014, the mother sought, by her counsel, to press for an immediate suspension of existing parenting orders at least to the extent that they provided for time to occur between the children and their father. On the basis that an interim application remained live before the Court (the mother’s Application in a Case filed 8 May 2014) and having regard to the evidence which had been presented over the four days of trial, orders were made as follows:
a)Reserved judgment to be delivered at a time and by means to be advised;
b)Pending further order, suspend all extant parenting orders;
c)Pending further order the three children shall live with their mother;
d)The Court requests that the Independent Children’s Lawyer explain both the above orders and the process to now be followed to bring the proceedings to a conclusion including, in terms the children will likely understand, the reservation of final judgment.
An undertaking was given to the parties to deliver judgment as soon as practicable and if at all possible on or before 14 November 2014 and such that the suspension of the order providing for the children’s time with their father would operate for a limited period and for no more than four weeks.
Notwithstanding the clear explanation to the parties and particularly

Mr Mitchell that the purpose and intent of the above orders was to cease time between Mr Mitchell and the children until judgment was delivered Mr Mitchell took it upon himself to then engage in a practice of collecting the two elder children from school of a Friday and for the day (at a time when State law imposes the obligation that children attend school).
A further Application in a Case was then filed by Ms Mitchell seeking a restraint upon Mr Mitchell’s removal of the children from school. That application was dealt with on short notice and on an undefended basis and such orders made, (together with a costs order with respect to the Application in a Case).

A consideration of the evidence

Each of the deponents were required for cross-examination. A consideration of the evidence will thus take into account the sworn evidence of the parties as filed, together with their evidence during cross-examination.
In the case of Mr Mitchell his treating psychologist was required and made available for cross-examination, namely, Mr T. Mr T had not sworn an affidavit in the proceedings. A report had been prepared by him which was annexed to the last of the various affidavits filed by

Mr Mitchell.
From the outset I make clear that all of the evidence (whether that contained within the affidavits, cross-examination or the various exhibits) has been taken into account by me. To the extent that the evidence is not recited in its totality and is touched upon in part and for illustrative purposes, I do not wish there to be any suggestion that the portions of the evidence specifically referred to within these Reasons is all that has been taken into account and that the other portions of the evidence have been overlooked or disregarded. They have not.
Whenever I have referred to the evidence of the parties given during cross-examination, I have endeavoured to quote the answer given as I have recorded it. I do not have the benefit of the transcript of each of the four days of hearing and have relied upon my notes. Accordingly, a quote of answers given by parties is intended to be as I have recorded the answer rather than a suggestion that it is drawn from a transcript. I am satisfied, however, that the answers that I have recorded are an accurate reflection of the evidence each party has given.
Ms Mitchell, as the Applicant, was cross-examined first. Ms Mitchell also, on day four of the hearing, briefly reopened her case and was available for cross-examination as regards further affidavits filed by her and her partner Ms S deposing to matters suggested to have occurred in the period between the matter going over part-heard and returning for conclusion.
As Mr Mitchell was self-represented throughout the proceedings I called upon the Independent Children’s Lawyer to commence cross-examination of Ms Mitchell. Mr Mitchell then also briefly cross-examined Ms Mitchell.
At the conclusion of Ms Mitchell’s evidence she was not significantly challenged on any aspect of her testimony and I accept her as a witness of truth.
A particular area of cross-examination of the mother (and her partner Ms S) was communication between Ms Mitchell and Mr Mitchell (and his mother), following release of the Family Report in early May 2014, in an attempt to seek a resolution of the matter. Whilst those discussions would, on their face, have fallen squarely within section 131 of the Evidence Act 1995 (Cth), and thus excluded, no objection was raised. In submissions regarding the issue however, it was made clear that the purpose of cross-examination upon the topic was not to interfere with the confidentiality of settlement negotiations but to seek to place them within a context, and thus address any submission as might arise regarding the contents of those settlement negotiations being inconsistent with the mother’s position in the case generally (which might found an exemption to confidentiality of settlement negotiations).
What was clear from cross-examination regarding such late attempts at resolution (and which involved both Ms Mitchell and Ms S proposing a shared care arrangement in contradistinction to the case argued a trial) was:
a)Those entreaties represented the only real or effective communication between the parties, directly or indirectly, since separation; and
b)The desire of Ms Mitchell and, for that matter, Ms S to balance the two evils of the children’s ongoing exposure to Mr Mitchell’s “rage” and the children’s exposure to ongoing litigation between their parents (and the disadvantage, emotionally and financially, that this would represent for all).
I accept Ms Mitchell’s evidence that she did not, at any time and including by the settlement proposals and entreaties for resolution advanced by her, resile from her belief that the children had been and would continue to be exposed to Mr Mitchell’s “rage” and psychologically harmed thereby.
Mr Mitchell’s cross-examination of the mother touched upon some issues of significance even though his cross-examination was brief. In particular a telling portion of the cross-examination was to the following effect:
Question: You agree the children love me?
Answer: Yes.
Question: You agree the children love their grandmother?
Answer: Yes.
Question: The children love my family?
Answer: Yes.
Question: Do you think decreasing the children’s time with me is in their best interests?
Answer: Yes.
Question: Do you believe reducing the children’s time with their extended family is in their best interests?
Answer: No.
Question: Do you think the children will be happy having supervised time with me?
Answer: No.
Question: Do you like making the children unhappy?
Answer: No.
What I clearly take from this passage of cross-examination is the catastrophic conundrum faced by Ms Mitchell (indeed faced by the Court) in balancing the children’s competing love for their father and desire to maintain a relationship with him, against their protection from the serious disadvantage and injury they have already suffered as a consequence of that relationship and might and in all probability will continue to suffer in the future, absent any significant change in the insight and behaviour of Mr Mitchell.
The cross-examination of Ms S was focused upon similar issues to those put to Ms Mitchell. Again, to the extent that Ms S had involved herself in seeking to negotiate a resolution of the matter following release of the Family Report, this does not cause me any concern as to the genuineness or veracity of the concerns held by Ms Mitchell and Ms S, and underscoring the position which Ms Mitchell urges upon the Court, being the suspension of the children’s time with their father on at least an interim basis and, on a long-term basis, stringent terms and conditions attaching to any relationship with and communication between the children and their father.
Ms S was also cross-examined regarding an event prior to the commencement of the proceedings and which was referred to throughout the proceedings as “the shower incident”.
There is no dispute, it is conceded frankly and clearly by both Ms S and Ms Mitchell, that on one occasion the eldest child [X] was placed by Ms S into a shower, whilst fully clothed, and the water turned on drenching the child. The only area of controversy is whether the water under which [X] stood was hot, cold or warm.
Mr Mitchell in his evidence and in his cross-examination of Ms Mitchell and Ms S, suggested that this event represented a significant incident of “child abuse”. During Mr Mitchell’s cross-examination and after he had conceded his behaviour towards the children (particularly their exposure to his “rage”) was abusive, he was asked to reflect upon which of the “shower incident,” or the ongoing pattern of the children’s exposure to anger and denigration was more injurious to the children. He quickly asserted that the “shower incident” was the more concerning and damaging.
When cross-examined with respect to the “shower incident” Ms S responded:
He [[X]] had been going off for 20 minutes. The other children were crying and screaming. He was crying and screaming and lashing out. I did what my mum did to me when I had tantrums albeit I was four not [X]’s age. I put him under the shower. He calmed down. Since, I have used strategies, as has [Ms Mitchell] to get him not to act like that and he hasn’t.
Both Mr Mitchell and his mother were clear during their cross-examination, that they each viewed this incident as child abuse and as a sufficient and appropriate basis for the three month cessation of all time and communication between the children and their mother immediately preceding the commencement of proceedings. Indeed

Mrs M Senior had suggested that during that period of being withheld from their mother that the children had not asked after their mother and had seemed perfectly happy and content without spending time with or communicating with her. That evidence I do not accept.
At the conclusion of Ms S’s evidence she was, like Ms Mitchell, unshaken as to the evidence that she had given and I accept her evidence. I accept Ms S as a witness of truth.
When each of Ms Mitchell and Ms S were recalled and Ms Mitchell’s case reopened 8 October 2014, their evidence was limited to comments made to them by one or more of the children since the matter had gone over part-heard. Ms Mitchell suggested that [Y] had related to her various clear and direct conversations between she and Mr Mitchell regarding the part-heard hearing and, in particular, matters raised by the Independent Children’s Lawyer. [Y] is suggested to have concluded by saying “Daddy said we deserve to know the truth so he told me about everything from court…”.
Ms S’s evidence was directed towards comments made by [Y] to her.
Ms Mitchell was not cross-examined by Mr Mitchell regarding the suggested content of the comments made by [Y]. The sole issue canvassed with Ms Mitchell was whether Ms Mitchell had, in her trial affidavit [paragraph 150] referred to [Y] as being a “compulsive liar”. Ms Mitchell conceded that the statement had been made by her in her affidavit but denied that she believed that [Y], or any of the children, fell within that description.
The above question had arisen within the context of Mr Mitchell’s evidence, particularly during his cross-examination, that he believed all three children to be “compulsive liars”. This was asserted by

Mr Mitchell as one of the bases upon which he should not be regarded as having acted inappropriately in, for instance, having terminated the children’s time and communication with their mother for the period of three months predating the commencement of these proceedings.

Mr Mitchell asserted that the children had made certain statements to him which he had relied upon as truthful and which, other than the “shower incident” he now doubted.
There is real issue as to whether the children have ever made statements to Mr Mitchell which would or would have been a reasonable basis for him to have acted in the manner that he has. To that end it is submitted in Ms Mitchell’s case that Mr Mitchell has simply sought to apportion blame to others, such as the children and former attorneys, for his actions so as to seek to avoid attribution of culpability for those behaviours and that in doing so he has been untruthful or disingenuous. I will deal with those issues in considering Mr Mitchell’s evidence to which I now turn.
Mr Mitchell was cross-examined at some length. It was to be expected that Mr Mitchell might be more thoroughly and completely cross-examined by Ms Mitchell’s counsel than the somewhat frugal cross-examination undertaken by Mr Mitchell of the mother.

Mr Mitchell’s evidence during cross-examination was given in a hostile, sarcastic and, at times, flippant manner. For example, on one occasion when Mr Mitchell was asked to turn his mind back to certain events during 2013, he gestured with his arms and made certain noises. When asked what he was doing he responded, somewhat gleefully, “I’m doing the Scooby Doo flashback. You know from the cartoon Scooby Doo. You’re asking me to go back and remember so that’s what I’m doing”.
Surprisingly, Mr Mitchell was able to maintain such an attitude, described by me to him whilst he was in the process of being cross-examined as “dripping with sarcasm” throughout his time in the witness box and notwithstanding the clear warning to him that such an attitude did him little credit and potentially damaged both his credibility and his case. Whilst he acknowledged that this was so, he seemed powerless to change the manner in which he addressed questions put during cross-examination which he was quick and ready to describe as “bothersome” and “tiresome”.
On several occasions Mr Mitchell was clear in indicating his contempt for the proceedings, counsel for Ms Mitchell and the Independent Children’s Lawyer, and the process generally which he saw as a completely unnecessary intrusion into his privacy and that of his family.
The cross-examination of Mr Mitchell particularly focused upon his general attitude to parenting, the children’s mother and his means of dealing with and responding to criticism or confrontation of him by any person. Any such suggestion put to Mr Mitchell was met with his assertion that he spoke his mind clearly and whilst this upset or confronted some people that he would continue to do so.
In dealing with the myriad of derogatory and offensive comments that Mr Mitchell was suggested to have made to, or about Ms Mitchell and Ms S, whether to them directly, to the children or to others,

Mr Mitchell largely, but not universally, accepted that which he had said or done. However, there were significant difficulties in accepting his evidence, both as to his denial of certain actions and comments which were clearly corroborated through independent records, and as to his suggested reliance upon external influences such as legal advice.
Generally as regards criticisms put to Mr Mitchell that he had exposed the children (and on one occasion, on the day the parents separated, a classroom full of children, when he had attended at [X]’s school and announced loudly in [X]’s classroom to [X]’s teacher and the assembled class of children that Ms Mitchell was a lesbian and had left him) to negative and derogatory comments as well as his anger and, in Mr Mitchell’s terms, his “rage”, Mr Mitchell responded in a disingenuous fashion, examples of which include:
“I was not in a good headspace. I did lots of things that were not good. In fact I did things that were bad.”
“I was far too upset and angry to listen to anyone or do anything rational.”
“The children are around too many frowning people. They just want to make people happy. I’ll say anything to make anyone happy. You can’t believe a word any of them say.”
“I was acting on advice of my lawyers and ignoring the interests of my children. The children’s best interests is a concept a bit foreign in this court room right now.”
“Yeah, things I said had an impact on the kids. A bad impact. Certainly not good.”
“They [the children] don’t need to know what between their parents. It does them no good. Sure that’s happened. But I’ve changed.”
“Yes I’ve done some very bad things and said bad things to the children. I was angry with the world. My behaviour was disgusting.”
“I did a lot of bad things regarding the children’s care. I said a lot of bad things to the children. Not a continuing or underlying problem though. I don’t know why everyone is making such a big deal.”
“The children have been exposed to my anger a lot over a long time. I’ve been angry for a long time. I was angry all the time. I was a very angry man. Basically the whole time I was married I was angry.”
When it was put to Mr Mitchell that the Court might have some difficulty in accepting that he had, indeed, experienced the “epiphany” he described and had realised, at some unspecified time following release of the Family Report, that to make such comments to, or in the presence of his children and to involve them in the dispute was contrary to their best interests and thus the Court might impose some stipulations upon his time with the children, Mr Mitchell responded with words to the effect:
“If there are stipulations for me to see the children than I’ll do whatever the court says. I’ll do everything within my power to see my children. Do whatever the court requires. I’m worn down and broken. You’ve won”.
I take little if any comfort from the above statement by Mr Mitchell. It does not demonstrate any insight on the part of Mr Mitchell as to the impact of his past behaviours.
To the extent that Mr Mitchell has sought to acknowledge that he has done “bad things” to his children, his answers have been flat, emotionless and generally given with an arrogance and sarcasm which would suggest the contrary to that which he asks the Court to accept he concedes and understands. An example of this also arises from cross-examination of Mr Mitchell regarding his attitude towards Ms Mitchell. It was put to Mr Mitchell that he did not like Ms Mitchell to which he smiled and responded in words to the effect:
“I like her, she is nice. She’s lovely. I personally was her carer. I did everything I could for her in the last two years. I don’t dislike her. I only don’t like her when she’s trying to take the children away”
It was then immediately suggested to Mr Mitchell that his answer was somewhat at odds with the views he expressed of Ms Mitchell only some weeks earlier when preparing his affidavit sworn or affirmed 14 August 2014 and wherein he had said, at paragraph 9:
I certainly do not like Ms Mitchell as she has been a lying and manipulative person of the lowest character - but there is no law against not liking your ex wife... As to being nasty to her lawyers there is certainly no law or ramifications to the children in my correspondence to her lawyer. Ms Mitchell’s lawyers in my opinion, are of low moral values and they were stating the obvious. I considered this antagonistic harassment.
In paragraph 14 of the same affidavit Mr Mitchell continued in the same vein:
There is no law in this world that makes someone be nice to their ex wife, Ms Mitchell is deluded as to how I should be dealing with her and wasting courts [sic] time with pointless legal action including AVO’s [Ms Mitchell obtained an apprehended domestic violence order, on a police complaint, after Mr Mitchell, as he conceded during cross-examination, kicked her when she was attending to collect the children]. I no longer smoke marijuana and haven’t since separation, I am offended that a lawyer and court can try to impose themselves on an individual to partake in drug testing with some old women [sic] watching me piss in a jar or take my blood – but I have made an appointment to do so and will supply the results which will be negative to the ICL as directed when they are available.
Mr Mitchell’s evidence in his affidavit 14 August 2014 concludes with the submission:
I have done nothing wrong and I’m agonising over the thought of losing more time with my kids. Life is very short and these kids should have a chance to enjoy their childhoods and equal time with both parents. Being dragged unnecessarily and repeatedly through court puts everybody involved under tremendous stress and anguish. I wish Ms Mitchell would stop and think for a minute as to how she is devastating the lifes [sic] of her kids and of their family.
During his cross-examination and, indeed, during his closing submissions, Mr Mitchell was prepared to concede:
I wasn’t a very good dad. I’ve done a lot of things that were not in their best interests. Have I harmed them? I agree. I let my anger cloud all of my thinking and I acted like a real dork. I was in a state of rage and the children saw it.
When challenged as to why he had withheld the children from

Ms Mitchell for a period of three months, notwithstanding that he had immediately prior thereto executed a parenting plan to implement a shared care arrangement and had, at interim hearing before Judge Henderson sought that the children’s time with the mother be supervised, Mr Mitchell repeatedly asserted that he had been doing nothing more than listening to the children’s complaints (they being described by the father as compulsive liars) and he now realising that he should not have done so and that he had been ill advised and “instructed” by his lawyers to do so notwithstanding his genuine belief and desire that a shared care arrangement should apply.
Mr Mitchell was warned on several occasions that the evidence that he was giving, as regards the advice provided to him by his lawyers and upon which he purportedly relied, was a waiver of his right to legal professional privilege. Mr Mitchell made clear that he had no difficulty with that evidence being before the Court and that evidence from the lawyers would corroborate his position. Indeed, he went so far as to indicate that each of the lawyers he had spoken to (being three separate lawyers from three separate firms or organisations) had “instructed him” to withhold time or to seek orders for limited time from the Court.
A subpoena was issued at short notice to the Hume Riverina Community Legal Service being the first legal service consulted by

Mr Mitchell. Their file was produced; Mr Mitchell was cross-examined with respect to portions of it and those portions upon which

Mr Mitchell was cross-examined were tendered.
What is clear from the material produced by the Hume Riverina Community Legal Service was that the situation as regards advice provided to Mr Mitchell was contrary to that which he suggested. Both the notes and subsequent correspondence confirming advice (very much following best practice) made clear that Mr Mitchell had sought validation of his view that the children’s time with their mother should be withheld and that he had been advised clearly of the:
a)Available services to assist in resolution, such as family dispute resolution;
b)Obligations of the Family Law Act to consider “… the basic responsibilities of both parents… To establish a way of working together to the benefit of the children”; and
c)Impact upon children of conflict and derogatory comments about or enmeshment in discussions regarding their parents and matters such as their parent’s separation and/or sexuality.
One further aspect of Mr Mitchell’s cross-examination which I am satisfied involved his giving evidence that was untruthful or at least disingenuous arose regarding comments made by him upon his Facebook page and in messages between he and Ms Mitchell.
Mr Mitchell indicated that his communication with Ms Mitchell was civil and whilst he had expressed some anger towards Ms Mitchell at an early point in their separation, he and Ms Mitchell had otherwise been able to communicate civilly and effectively. Specifically,

Mr Mitchell denied that he had ever sent any insulting or abusive text or voice messages to Ms Mitchell.
A number of voice messages left by Mr Mitchell for Ms Mitchell were played to him during his cross-examination. Within the messages left by Mr Mitchell, including in quite recent times and certainly during 2014, Mr Mitchell’s language, raised voice and sarcasm demonstrated clearly a negative attitude towards Ms Mitchell and his inability to be civil towards or in dealing with Ms Mitchell.
The above was further demonstrated by a number of text message communications between the parties, albeit dating from November 2012. Those messages (exhibit A8) commence with the statement by Ms Mitchell “That is an inappropriate way to communicate with me. Keep to the point and refrain from abuse”. Mr Mitchell then responds:
That is the point I’m not happy with what my kids are being exposed to your way of life disgusts me to use your words! You disgust me! You make me dry reach [sic] you have no idea about appropriate… you are laughable! The only non funny [sic] bit is that you are still around my kids
The evidence is littered with similar comments and reactions by

Mr Mitchell to and about Ms Mitchell, from the date of separation and until recent times.
When Mr Mitchell was confronted regarding his expression upon his Facebook page of his dislike of “fags” (there being no issue that Ms Mitchell lives in a lesbian relationship), Mr Mitchell was at pains to assert that his Facebook page suggested an entirely appropriate dislike of smoking. The context of the comments make clear that this was not that intended by Mr Mitchell in the comments made on his Facebook page and I reject his evidence. Indeed, the comments made by

Mr Mitchell upon his Facebook page make clear that he has no difficulty in sharing his dislike of Ms Mitchell and her sexuality, with the children and the world at large.
I do not propose to canvass the balance of Mr Mitchell’s evidence in detail. As indicated earlier I have read and considered all of the material before the Court and have taken into account the evidence of the parties given during their cross-examination.
At the conclusion of Mr Mitchell’s cross-examination I did not accept him as a witness of truth. Specifically I did not accept his evidence that:
a)He had been embracive of shared care and the importance to the children of a relationship with their mother at all times and, to the extent that anything to the contrary had been expressed, including to the Court or the Family Consultant, that this had been on the basis of “instruction” to him by lawyers;
b)His attitude towards Ms Mitchell has changed and that he no longer held negative views of her nor expressed them;
c)He had not discussed with the children during the part-heard adjournment of the proceedings or otherwise, the proceedings or his desire for an equal shared care arrangement;
d)He appreciated and understood the impact of his behaviour and especially his expression of anger, bitterness and dislike of and towards the children’s mother upon the children; and
e)He and Ms Mitchell were able to communicate openly and civilly with each other and resolve difficulties between them and that Mr Mitchell was ready, willing and able to speak calmly and civilly with Ms Mitchell.
Mr Mitchell’s mother was also required for cross-examination. Mrs M conceded that, at times, she had had to intervene to “calm down”
Mr Mitchell when he was expressing anger or rage in the children’s presence. Mrs M conceded that she had intervened on occasions but added “when he’d receive texts from Ms Mitchell, he would react in a non-guarded way”.
When it was put to Mrs M that [X] had suggested to both his counsellor and the Family Consultant that his father had reacted angrily and demonstrated significant anger which had made him fearful and that his father continued to do so even after Mrs M’s interventions

Mrs M responded:
I can’t say it’s never happened. He usually runs at me and then walks away. I spend a lot of time with him. He does act out what he is thinking. He’s always been very outspoken. He’s the same person who he’s always been. It’s not him that has changed [being a reference to the suggested “change” of Ms Mitchell in leaving the marriage and coming out as regards her sexuality].
I accept Mrs M has filled a number of important roles for these children since the separation of their parents (indeed she has had a significant role to play with the children since their respective births and particularly during a period when Ms Mitchell was significantly ill and hospitalised (prior to separation) as a consequence of injuries sustained by her in hospital – and the subject of litigation in another forum).
In more recent times Mrs M has had a significant role to play in:
a)Preparing the children for school each morning when they are in the care of Mr Mitchell and ensuring that they get to school (Mr Mitchell leaving for work early in the morning and that role devolving to Mrs M);
b)Attending to changeovers (and collecting the children from school on weekdays that they are in Mr Mitchell’s care) on behalf of Mr Mitchell. This has had the significant benefit that the children have not been directly exposed to their parent’s “toxic” communication with each other at changeovers, as they have been exposed in the past (including, I accept, the children being present and witnessing both verbal and physical violence by their father towards their mother in their presence);
c)Engaging with Ms Mitchell and being the conduit by which communication has occurred with respect to the children. Ms Mitchell and Mrs M have begun a practise of using a communication book between them and by which they pass information relating to the children and so that Mrs M might assist her son in receiving that information although, based upon Mr Mitchell’s evidence, not completely; and
d)Spending time with the children as arranged between she and Ms Mitchell.
There are some concerns, however, that Mrs M is, understandably, partisan to her son’s cause. She is able to recognise and understand the inappropriateness of a number of Mr Mitchell’s behaviours (such as, to this date in all probability, having the children’s mother saved on his mobile phone as “[Ms Mitchell] the mole” and his inability to self-regulate and restrain his expression of anger). However, Mrs M would appear reluctant to acknowledge the impact of Mr Mitchell’s past behaviours upon the children or the impact of his present and ongoing behaviours upon the children. For example, Mrs M gave evidence that:
a)During the period of three months that the children were withheld from their mother, “they didn’t really talk about her [the mother]. They didn’t ask to ring her. They seemed perfectly happy”;
b)
With respect to the saving of the mother’s name upon

Mr Mitchell’s phone as “the mole”, Mrs M acknowledged that the children were aware of this and that [Y] had seen it on her father’s phone and she then opined “she [[Y]] found it funny and wasn’t distressed”.
In discussing Mr Mitchell’s inability to self-regulate and control and restrain his rage she described, “He flies off. He says whatever is in his head. It’s just how he’s always been. He apologises later if he said anything wrong”. This would not, however, sit comfortably with acknowledging the inappropriateness of such behaviours nor the ability to effectively prevent such situations arising and diffusing them when they do arise. The difficulty being that once Mr Mitchell has “said whatever is in his head” the children have been exposed to their father’s “rage” and are harmed by it (as was conceded by both

Mr Mitchell and Mrs M as a consequence of that behaviour).
By and large I accept the evidence of Mrs M as truthful, although I retain a concern that Mrs M’s evidence was, at times, less than candid and was deliberately so in the full awareness of the impact of

Mr Mitchell’s past behaviours upon his children and his case.

The father’s psychologist Mr T

Mr T had provided a report with respect to the father and which report was annexed to one of Mr Mitchell’s affidavits. Within that report Mr T made clear that Mr Mitchell had attended four appointments in total, commencing in March 2014. No future appointments are identified.
Mr Mitchell is described within the report as:
When talking about his ex-wife in the first session Mr Mitchell became very black and white in his thinking and sarcastic. It is the opinion of the writer that Mr Mitchell was very hurt and confused by his ex-wife’s decisions and this manifested in frustration, anger, and an outpouring of emotion. It is also the opinion of the writer that there was no malice in Mr Mitchell’s intentions but again a confused expression of hurt and insecurity.

The nature of the father’s behaviour with these children and the father’s lack of insight into how his behaviour impacts upon his children or his relationship with them gives me no confidence that the father has insight into those aspects of his behaviour which require change and of the long-term impact upon these children of a failure by him to change.
I accept that there has been some change in the father’s behaviour within the last few months and as the children have perceived and reported to Ms B. However, I accept the submission of the Independent Children’s Lawyer that this change is best reflective of the father’s behaviour being refocused upon instilling within these children an innate sense of the father’s victimisation by the mother and the Court (and all involved therewith) and such that the children’s anxiety is now reflected in their anxiety towards those arrangements rather than the father’s active expression of hatred and loathing of the mother. The father’s evidence makes clear that his attitude towards the mother is unchanged, unlikely to change and, consequently, unlikely to be permanently withheld from these children.
For Mr Mitchell to submit that the children have a “right to their childhood” when the only person who has engaged in any behaviour which has, in any fashion, impacted upon their right to such childhood innocence is him, demonstrates profound hypocrisy on his part, but for the purpose of this determination and more importantly, a profound lack of insight on his part.
I accept that there remains a significant risk that the children will be exposed to the father’s unremitting attitudes, hostility, inability to self-regulate or refrain from inappropriate outbursts and discussions with these children. Further, I accept from the totality of the evidence including that specifically discussed above, suggests that even the modulating presence of Mrs M is insufficient to ensure that this does not occur or will not occur in the future.
Mr Mitchell has created the circumstances wherein the Court must, if not now then in the foreseeable future, choose between which parental relationship these children can safely maintain. As clearly the children’s relationship with Mr Mitchell, on his own concession, is permeated by past harm, disadvantage and subject to future risk, any failure on the part of Mr Mitchell to modify his behaviours may irresistibly support the relief which Ms Mitchell urges namely, the cessation of the relationship between the children and their father.
There have been periods since separation when clearly it has been impossible for the children to maintain a relationship with both parents either physically, practically or emotionally. It should be noted that notwithstanding the children’s exposure to the father’s behaviours, as unrestrained expressions of rage and hatred and repeated and ongoing denigration of Ms Mitchell and Ms S, these children’s relationship with their mother remained strong. That must, in my mind, speak to the strength of that relationship and the strength of the relationship prior to the separation of these parties.
When faced with a relationship of strength between the children and their mother, a relationship which is not impacted by self-destructive and damaging behaviours and when this is balanced with the children’s troubled relationship with their father (wherein they express love and a desire for a relationship with a parent who concedes his abuse of them) the choice, while damaging to the children on acceptance of either proposal, overwhelmingly supports the relief proposed by the Independent Children’s Lawyer, if not that proposed by the mother.

Children’s views

I have difficulty accepting the submissions of Mr Mitchell that these children, particularly [X] and [Y], have a strong view supportive of the shared care arrangement.
The evidence which I accept with respect to the children’s views is that contained within the evidence of Ms B and Ms D. That evidence is entirely consistent with the evidence of the mother and Ms S, particularly, as regards the extent to which the children’s father has actively engaged in discussion with the children and influenced any view they have expressed.
The evidence of Ms B, to do it credit, does not advance any wish suggested to be expressed by the children. Ms B records that the children express views regarding a “50-50 care” arrangement and within the context of their father’s perception of and desire for that arrangement. At no point in that contained within Ms B’s report is it suggested that the children have advocated for such an arrangement nor that it is something they crave or desire. They have most assuredly advocated for that outcome and within the context therein described as being their father’s view that it would be unfair that any other arrangement apply.
What is clear is that Ms B concludes that “it appears that both children have been influenced by their father’s care preferences, and as a consequence of this feel that they have a role to play in order to have those needs met”.
These are children aged nine and seven years. Such a burden upon the shoulders of children of that age does not achieve the very purpose which Mr Mitchell advocates on behalf of these children, being to permit them to enjoy their childhood. Indeed, that level of pressure and enmeshment is abusive by and of itself (whether within the lay or section 4 definition I need not determine and I make clear that I adopt that term consistent with the evidence of Ms B).
Similarly, Ms D in her Family Report refers to the children’s perceptions of the fairness of future care arrangements. Both [X] and [Y] are quite clear in their concern to protect their father and, similarly, some level of fear regarding their father’s reaction in the event that they express views contrary to his own (see for example paragraphs 41 and 44 of Ms D’s report).
Of [X] Ms D reports (paragraph 42):
When asked about his living arrangement preferences, [X] said that he did not know.
With respect to [Y], Ms D reports:
[Y] said that she feels close to her mother and father and wants to spend time with them both, “but I don’t want him (Mr Mitchell) to say mean things about Mum”… [Y] said that Mr Mitchell had told her to inform the Family Consultant in interview that she wants to see her parents the same amount of time.
I accept the evidence of Ms B and Ms D that the views expressed by the children, to the express extent that they can appropriately be described as an expression by the children of “their” (emphasis added) view, cannot be afforded any real weight.
The children have clearly been the subject of discussion with their father and the children’s desire to not create trouble for their father is made clear in Ms D’s report. The desire of both [X] and [Y] to advocate the arrangement their father desires is made clear in the report of Ms B.
By reference to authorities such as Re R Children’s Wishes [2000] FamCA 43 and Harrison & Woollard (1995) FLC 92-598, I am satisfied that the children’s views are not reflective of their genuine feelings, not views formulated or articulated by or for themselves and represent nothing more than the children’s anxious and deliberate advocacy for a position they are fully aware their father desires and in a context wherein his anger, whether towards them or otherwise, to which they will be exposed, will be significant and unremitting.

The nature of the children’s relationship with each parent and other significant people

I am satisfied that the children enjoy an excellent and meaningful relationship with their mother and with Ms S (the mother’s partner).
I am satisfied the children hold real love and affection for their paternal grandmother Mrs M and feel a greater degree of safety in her care or when she is present than when they are in the care of their father. She is an important person to them and in their lives and has been since an early age.
It is a credit to Ms Mitchell that she has been able to maintain communication and a cordial relationship with Mrs M (notwithstanding that Mrs M is somewhat forgiving and shielding of her son from criticisms which are entirely warranted and would appear, from her evidence during cross-examination, to share, although not to the same depth or intensity, some of the negative views of Ms Mitchell expressed by Mr Mitchell).
The children’s relationship with their father is touched upon above. I am satisfied that the children’s relationship with their father is, in a loose and broad sense, “meaningful”. However, within the context of the discussion within Mazorski & Albright [2007] FamCA 520 and in any significant fashion I am concerned that the children’s relationship with their father could not be described as:
a)Meaningful. Fear and sense of duty are circumjacent to the children’s relationship with their father and particularly [Y]’s relationship with her father. As a consequence, these children and [Y] in particular have, to a large extent, assumed the role of supporter or “parent” to Mr Mitchell, rather than the relationship which can and should exist wherein Mr Mitchell identifies and meets the needs of the children separate from his own; and
b)Close or meaningful or as emotionally healthy as the relationship that the children enjoy with their mother. Ms Mitchell is able to differentiate her needs and interests from those of the children. She has shielded the children from conflict, has been supportive of them in dealing with their own reactions to their father’s behaviours and has acted protectively towards them including in these proceedings.
To the extent that it is asserted that these children enjoy a relationship of importance with the children of Ms H I do not, for the reasons described above and including through application of Jones & Dunkel, accept that they are relationships of importance or meaning.

The extent to which each parent has taken the opportunity to participate in decision-making, spending time and communicating with the children

Ms Mitchell has availed herself of all opportunities to participate in decision-making, spend time and communicate with these children, and has done so at all times since separation and irrespective of the barriers and impediments put in her way principally by Mr Mitchell.
To the extent that Mr Mitchell submits that the mother “abandoned” the children at separation I reject that submission. I prefer and accept the evidence of Ms Mitchell that she had indicated clearly to Mr Mitchell, prior to separation, that she would obtain accommodation for herself (having none to go to at the time of separation) and would then seek to have the children live in an equal care arrangement between the parents. Within five days of separation Ms Mitchell had procured accommodation and sought to initiate that arrangement.
Mr Mitchell has placed barriers in Ms Mitchell’s path at each available point, including, through his actions immediately following separation (as demonstrated through the notes from the Hume Riverina Community Legal Service), in terminating all time for a period of three months and notwithstanding the parties had recently attended Family Dispute Resolution and had entered into a parenting plan, and through seeking to influence the children’s views both towards the mother (and her partner Ms S) and towards future care arrangements.
To the extent that Mr Mitchell asserts that he was acting protectively in withholding the children for a period of three months (which action prompted Ms Mitchell to appropriately commence these proceedings), such allegation does not bear close scrutiny. The major incident upon which Mr Mitchell relied in asserting risk to the children, being the “shower incident”, occurred some months prior to his actions in withholding the children and prior to Family Dispute Resolution. Whether Mr Mitchell was motivated, as Ms Mitchell alleges, by financial considerations or simply his hatred of Ms Mitchell is unclear. However, I cannot accept that he acted upon any motivation connected with the children’s best interests or a consideration thereof.
Mr Mitchell has, since separation, continued to absent himself from the children’s care each weekend that they have been in his care for the purpose of pursuing his hobbies and interests [omitted] and does so willingly. That is not to suggest that a parent cannot indulge their own interests and that it is not, in fact, beneficial to children to have a parent who is relaxed, self-satisfied and better able to engage in their care as a consequence. However, it is consistent with the balance of

Mr Mitchell’s actions as regards failing to prioritise the children’s needs as separate from and in priority to his own. When the two are identical he is able to take action and when they are not he declines.
Mr Mitchell is dependent upon his mother to ensure that the children can be taken to and from school during the periods that they have been in his care in the past. Mrs M prepares the children for school each morning and ensures their attendance thereat and their collection therefrom. That is not to suggest that a working parent cannot and should not continue in employment and make appropriate arrangements, in this case with a family member with whom the children are close and familiar. However, I am satisfied that in the case of Mr Mitchell, it is reflective of the priorities in his life, the care of the children being less important to him than meeting his needs and ensuring that the children are not in the care of Ms Mitchell.
Prior to the June 2012 amendments to the Family Law Act this consideration was contained within section 60CC(4) and which also provided for a consideration of the extent to which each parent had interfered in the capacity of the other to be involved in decision-making, spending time and communicating with children. On the evidence, that is a significant criticism of Mr Mitchell and one which cannot be made of Ms Mitchell.
To the extent that Ms Mitchell, at the conclusion of the evidence in this trial, seeks to severely limit (if not terminate) the children’s time with their father her action is motivated, I am satisfied having heard and considered the same evidence, by a protective desire.
Also prior to the June 2012 amendments the Court was authorised by subsection (c) as then drafted, to have regard to the capacity of each parent to promote and encourage the relationship between the children and the other parent. Whilst that provision was often erroneously described as the “friendly parent” provision it was nothing of the sort. Such a consideration remains relevant however.
Clearly the attitude that has been demonstrated by Mr Mitchell towards recognising, encouraging and promoting the children’s relationship with their mother is the subject of significant criticism. I am satisfied, from a consideration of the totality of evidence, that Mr Mitchell has demonstrated an inability and incapacity to recognise the children’s needs as separate from his own and has, by and large, conflated the children’s needs with his own. That has, as the expert evidence has spoken to, a real potential to psychologically if not psychiatrically damage these children as they age and mature.
Ms Mitchell has demonstrated an appropriate and responsible attitude towards the children’s relationship with their father both at separation, throughout the currency of these proceedings and in her present application to the Court.

The extent to which each parent has financially supported the children

Each party has given evidence regarding the suggested financial motivation of the other in pursuing the position they advance. I am not satisfied that I can nor need make any finding with respect to that evidence. Suffice to note that the financial contribution made by each is significant at this time as each has had substantial and significant care of the children and thus meets the needs of the children whilst the children are in their care.
The level of child support that is provided for the children is not significant. The parties have clearly been engaged in obtaining an administrative assessment of child support and, following the issue of an assessment, Mr Mitchell has pursued, as is his right, an application for change of assessment. That application would appear to have been determined 3 September 2014 (a few weeks prior to the commencement of this hearing) and accordingly arrangements for future financial support, in accordance with the child support legislation, are set. I do not propose to consider the issue further.

Likely effect of change including separation from either parent or other person

Ms Mitchell urges that the children’s relationship with their father should be terminated or severely restricted. As regards restriction the Independent Children’s Lawyer supports that position.
Significantly reduced time between the children and their father would be a significant change for them. However, change can be positive or negative and in most cases, including this, comes with both positive and negative consequences.
As I have described to the parties, Mr Mitchell has created an unacceptable catastrophe for these children. To continue their time arrangements with their father, on a shared care basis, however that might be structured, has the potential to be significantly injurious to them. A continuation of the father’s behaviours, and I do not accept his evidence that he has developed and acted upon insight into the effect of his behaviours and thus the need to restrain himself from them, has real and significant potential to cause lifelong psychological or psychiatric harm to these children. I do not accept that Mr Mitchell is capable of accepting, appreciating or understanding that proposition as he remains, in his own words, “blinded by his anger” as well as his underlying inability to accept that he may be wrong about anything.
The consequence for these children of terminating or severely restricting their relationship with their father is, simplistically, beneficial and, at least as regards restriction, verging upon irresistible. These children have already been psychologically harmed in the 18 months since their parents’ separation and as a consequence of nothing more than their father’s anger and hatred of their mother and Ms S together with his inability to restrain himself from expressing those emotions in a manner which is inappropriate for and inconsistent with proper parenting.
Notwithstanding the above there are also negative consequences for these children of terminating or reducing their time with their father. To the extent that they are already significantly enmeshed in their father’s position and advocating for it, would have the potential to generate anger in them towards their mother and thus damage their relationship with her. There would always be the potential that a reduction in time would damage the children’s relationship with their father. However, in the circumstances wherein that relationship is largely unhealthy for these children, without significant change in the father’s insight and behaviours, that is the lesser of the two concerns.
I accept the submission of the Independent Children’s Lawyer that a complete termination of the children’s relationship with their father at this point may be counter-productive at least in the short term. The burden which these children feel, the responsibility for not only agitating for but obtaining the arrangement which Mr Mitchell seeks, is so significant that these children would feel an overwhelming sense of guilt and responsibility if it were not achieved and their father would thus be hurt and disappointed.
There would also be the potential that the father, if cut from the children’s lives at this point, might become “mythologised” to these children as a “wronged martyr”. The potential for the children to focus their sense of wrongdoing upon their mother and thus impact on their relationship with her, their only healthy parental relationship, is again, real and significant.

In light of the conundrum created by these choices, I am satisfied that a significant change is not only warranted but required and desirable if not necessary to meet the children’s needs and best interests. To that end I accept the submission of the Independent Children’s Lawyer that a regime of limited, fortnightly time, so that the children maintain a connection with their father, is preferable to no time at all.
I do not consider it valid to differentiate between different categories of “abuse”. It is difficult to comprehend the circumstances in which the Court would countenance an ongoing relationship between a child and a parent when that parent had physically or sexually abused the child. It may be possible that evidence might support the need to continue such a relationship on some limited basis and with appropriate safeguards. However, I need not formulate, hypothetical as it would be in this case, the type of circumstances which might warrant such an approach.
In this case and as I have deliberately highlighted at the outset of these Reasons, this father concedes that he has engaged in behaviour that has been abusive of his children and which, whether accepted by

Mr Mitchell or not, I accept has caused serious emotional and psychological harm to these children and, at the very least, for [X] and [Y]. In those circumstances, I accept that I must act protectively and, as the legislation compels, prioritise the children’s need for protection above all else.
There is some risk in continuing even limited time between these children and their father. Those risks are real. There is the risk that the father will not comply with orders. He has demonstrated during the currency of these proceedings that he does so only when he considers it necessary and desirable and then at a time and by means of his choosing and not otherwise. Those matters are highlighted not to suggest reaction to the father’s contumelious disregard of the Court but as reflective of Mr Mitchell’s lack of insight into the need for change in his attitude and behaviour, let alone his ability to be an instrument of affecting such change.
There is the risk that these children, when spending time with their father, will be subjected to an ongoing campaign by him to enlist the children as co-conspirators (to adopt the submission of counsel for the mother which is, having regard to the evidence in this case, entirely appropriate). If that were to continue and the evidence, in any future application supported such a finding then the mother’s primary position of no time would begin to assume such importance as to warrant serious reconsideration and such as to render that proposal and the children’s best interests conterminous.
Finally, there is the risk that even if the father is able to restrain himself from engaging in the abusive and injurious behaviours which he has engaged in and demonstrated in the past, that difficulty would still arise for these children, through their continuing relationship with their father in feeling such empathy and identification with his position, his sense of hurt and unfairness, that it would undermine, to their disadvantage, their relationship with their mother.
I am satisfied, having regard to the totality of evidence that whilst this potential is real that it would be equally real and valid, as a risk to the children’s welfare, if their relationship with their father were terminated at this time.

Practical difficulty and expense

I incorporate herein the provisions of section 65DAA(5) as follows:
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
These parents do not live any significant distance apart. They live remarkably close to each other on a geographical basis.
The consideration of reasonable practicality does not, however, start and finish with a consideration of logistical factors. That which is contained within section 65DAA(5) largely codifies the aspects of a parenting relationship which one might expect to exist if any arrangement for shared care (whether equal or substantial and significant time) is to operate successfully and in serving the best interests of a child.
These parents have little capacity to implement an arrangement for equal or substantial and significant time. Such an arrangement requires an ability to cooperatively parent, communicate and resolve difficulties and to develop and maintain some degree of “parental alliance”. Clearly that is not present in this case.
Similarly, these parents have no present capacity to communicate and resolve difficulties with each other. The only communication which presently exists, on any level, and it is far from a meaningful level, is the communication which occurs between the mother and Mrs M through the use of the communication book.
I am not satisfied that an order made by me pursuant to section 13C of the Act, directing that these parties attend and participate at any further family counselling service will achieve any benefit to these children through improvement of communication. I have previously made orders requiring that the parties enrol in, attend and complete the Parenting Orders Program (subject to assessment of suitability). That is one of the orders that Mr Mitchell has failed to see benefit in and has thus taken no active step to address. In any event, and now having had the benefit of hearing all of the evidence and, importantly, having observed Mr Mitchell in the witness box, I am not satisfied that it would produce any meaningful or lasting benefit.
I have the greatest of respect for those who work within family counselling and family dispute resolution. However, they cannot achieve miracles. They can assist parties who recognise and embrace the need to change and to become an instrument of such change in their lives and that of the children. I am not satisfied that Mr Mitchell identifies any need to change his behaviour and thus it is unlikely that he would benefit, as I accept he has failed to benefit from counselling with Mr T, from those services. Accordingly, those services would be better used by parties to whom they can bring benefit.
As regards the impact of future arrangements upon these children I am satisfied that is addressed above by reference to subsection (d).

Capacity of each parent to meet the children’s emotional and intellectual needs

There is no criticism raised by Mr Mitchell as to the capacity of

Ms Mitchell (or for that matter Ms S) to meet the emotional and intellectual needs of these children.
There is significant issue raised as to the capacity of Mr Mitchell to identify and meet the emotional and intellectual needs of these children. On the basis that I have accepted and have found that Mr Mitchell has, as he has conceded, been emotionally abusive of these children it is impossible to find that Mr Mitchell has an equal capacity to that of

Ms Mitchell to meet the children’s emotional needs, if at all.
I accept the criticisms of Mr Mitchell, as raised by Ms Mitchell and as is spoken to and substantially shared by Ms B and Ms D, that

Mr Mitchell has, at different times and to different degrees, conflated his emotional needs and interests with those of these children and in so doing has subjugated and suppressed the children’s sense of identity and has failed to meet their emotional needs at all. This has included through the exposure of these children to expressions of hatred for the children’s mother (and Ms S), discussion of adult issues which it has been entirely inappropriate to share with children of 7 and 9 years of age and through the children’s exposure to family violence.
More recently but no less insidiously this has involved Mr Mitchell generating within these children, particularly [X] and [Y], a sense of responsibility to “do his bidding” and obtain the arrangement which he desires, that which he considers “fair”. In doing so, Mr Mitchell has, at the very least, been blind to the children’s emotional needs and the impact of his behaviours upon them and has, at worst, completely suppressed and disregarded there emotional needs in preference to his own.
Clearly this factor favours Ms Mitchell’s case.

Maturity, sex, lifestyle and background of the children and each parent

At various points in these proceedings Mr Mitchell has referred to

Ms Mitchell’s “brave choices” and “lifestyle” choices. In making those comments Mr Mitchell has been referring to Ms Mitchell’s sexuality as a gay woman. Mrs M has similarly referred to

Ms Mitchell’s sexuality as “her choice”.
Mr Mitchell has not sought to press this issue with any force in his closing submissions. However, lest it be suggested that his position has been overlooked I make clear that Ms Mitchell’s sexuality is not a choice. Nor is it lifestyle. It is a genuine, authentic expression by her of herself.
Mr Mitchell is clearly aggrieved and unable to come to terms with

Ms Mitchell’s authentic self. However, that is his shortcoming, perhaps even his “choice”, rather than anything within the control or influence of Ms Mitchell. If Mr Mitchell chooses to continue to hold such a view, to support or protect his sense of self or for any other reason, then that is a matter for him. However, it is a simple reality for Ms Mitchell that she is gay and for her to live her life authentically and genuinely is a benefit to these children in demonstrating herself and her humanity.
These children are young. [X] is 9, [Y] is 7 and, [Z] is 4. They cannot attend to their own needs and should not be called upon to do so. That extends to and includes their emotional needs.
These children should be allowed and permitted, as Mr Mitchell has submitted and protested, to enjoy their childhood. They cannot do so whilst their self, their emotional needs and their role in a parent-child relationship as children is ignored.
It is the role of parents to parent. It is not the role of children to be an emotional support, a crutch if you will, to their parents. Children should certainly do as their parents tell them but within the bounds of appropriate and lawful direction and enforcement of a parent’s will or chastisement.
The directions given by Mr Mitchell to these children, such as the directions to [X] to tell his mother and Ms S to “fuck off” or to physically strike them is inappropriate and abusive. For [Y] to be so enmeshed and taken in by her father as an accomplice in his emotional trauma following separation from their mother, is again inappropriate and abusive.
The involvement of these children, at the time of separation of the parents then aged eight and six years of age, in a discussion of their mother’s sexuality (or any parents sexuality and whether heterosexual or gay) is entirely inappropriate and abusive.
Such criticisms are not raised or levelled with respect to Ms Mitchell. They are raised with real force and weight as regards Mr Mitchell.
This factor supports Ms Mitchell’s case and that advanced by the Independent Children’s Lawyer

Aboriginality and Torres Strait Islander descent

Neither parent identifies as a person of Aboriginal or Torres Strait Islander descent. The children are not identified as persons of Aboriginal or Torres Strait Islander descent.

The attitude demonstrated by each parent towards their responsibilities as parents

I am satisfied that the above discussion of the evidence abundantly addresses this consideration.
There is no criticism raised of Ms Mitchell’s attitude towards her responsibilities as a parent including her responsibilities financially, practically and emotionally.
There are significant criticisms raised as regards Mr Mitchell’s attitude towards his responsibilities as a parent and those criticisms have been substantiated by the evidence led in these proceedings including by concessions made by Mr Mitchell as to both his past actions and the inappropriateness of his attitude (confined, as regards Mr Mitchell’s concessions, to past attitude). Beyond the concession made by

Mr Mitchell I am satisfied that criticism of his present and demonstrated attitude is also warranted.

Family violence

Ms Mitchell alleges family violence perpetrated by Mr Mitchell towards her and in the presence, hearing and perception of the children.
Considerations of family violence are fundamental to all that is done by the Court in parenting proceedings. The obligation to consider family violence arises prior to the commencement of proceedings forming, as it does, a basis for exemption from attendance at Family Dispute Resolution prior to filing. To the credit of these parties they have pursued Family Dispute Resolution and have taken advice (as section 60J requires) as to the means by which Family Dispute Resolution might proceed even with the presence of family violence concerns.
The consideration of family violence and its importance is discussed at length in the Best Practice Principles version 3.1 and the discussion therein of the various legislative provisions and binding authorities.
Having considered the totality of evidence I am satisfied that the risk of future family violence and the children’s exposure thereto will be minimised through relief of the nature proposed by Ms Mitchell and supported by the Independent Children’s Lawyer.
These children have been exposed to family violence. On the basis of the section 4AB definition Ms Mitchell has established coercive and controlling family violence through physical violence towards her, repeated derogatory taunts and denigration, restrictions upon relationships with family members (indeed restrictions upon the children’s relationship with their mother) and the active steps taken by Mr Mitchell to enlist these children as his allies or co-conspirators in furthering his interests and meeting his needs. That finding and the evidence supporting that finding weigh in favour of the relief proposed by Ms Mitchell and the Independent Children’s Lawyer.

Family violence orders

A family violence order has been made in the past and has been made for the protection of Ms Mitchell and imposing prohibitions upon

Mr Mitchell. It would not appear to be presently in force. The facts and circumstances relating to the making of the order have been the subject of evidence given directly by the parties in these proceedings and thus taken into account above.

Making the order that would least likely lead to the institution of future proceedings

Satisfactorily addressing this factor is problematic.
I am conscious that any order which provides for time between the children and Mr Mitchell has the potential, in light of the risks apprehended with respect to such an arrangement and discussed above, to lead to future proceedings. However, that risk is outweighed by the risks to the children of pre-emptively terminating their relationship with their father and for the reasons submitted by the Independent Children’s Lawyer and canvassed above.
I am satisfied that the best balance which can be achieved in minimising the risk of future proceedings is to make orders that are clear and certain, which allow an ongoing involvement between these children and their father but on a relatively minimal basis.
In light of the above I am satisfied that orders as follows are appropriate.

I certify that the preceding three hundred and forty-nine (349) paragraphs are a true copy of the reasons for judgment of Judge Harman

Associate:

Date: 14 November 2014

[2014] FCCA 2526

14 November 2014

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Remedies

Procedural Fairness

Date	Event
[omitted] 1974	Father born
[omitted] 1978	Mother’s partner Ms S born
[omitted] 1979	Mother born
2001	Mother alleges she and father began living together. Father says they began living together in 1999.
[omitted] 2004	Parties were married.
[omitted] 2005	[X] born (currently aged 9)
[omitted] 2007	[Y] born (currently aged 7)
September 2007 onwards	Mother develops acquired brain injury as a result of staph infection. Father stopped work to care for mother and the children.
January 2008	Mother returns to work minimal hours.
March 2008	Father returns to full time work.
[omitted] 2010	[Z] born (currently aged 4)
17/08/2012	Parties separated. Mother moved out of shared rental accommodation, Mr Mitchell remained living there. Mother moved to 3 bedroom townhouse in [omitted].
27/08/2012	Mother collected children from school and childcare, parties agreed that father would deliver their suitcases to her home that afternoon. Father subsequently came to her house, collected children, only allowed mother supervised visits.
7/09/2012	Section 60I Certificate issued.
Mid September 2012	Father allows mother to spend time with children on a regular basis. Agreed that mother would pick up children from school/childcare each weekday and spend time with them until 6.00pm each weekday and then time with mother each alternate weekend from after school Friday until 6.00pm Sunday. Mother said she would like kids overnight, father said no because his parenting payment would be cut. Said that if she saw them outside those times she won’t see them at all.
October 2012	Father contacts mother and tells her he has contacted lawyer for defence in her personal injury matter to have him appear as witness against her.
20 October 2012	Mother introduces her partner [Ms S] to the children as her friend. Children now aware that [Ms S] is her partner.
13 November 2012	Participated in Legal Aid Conference. Mother claims she and father reach interim agreement that children will live with father and spend time with mother each Wednesday overnight and each alternate weekend from Friday afternoon to Monday morning.
November 2012	Mother alleges father unilaterally changed arrangements: she was told to pick kids up at his house rather than his mothers; he enrolled kids in a new school without her permission. Father claims he doesn’t think he was bound by heads of agreement because the mother unilaterally altered the agreement previously.
Late November 2012	Police lodged AVO against father for the mother’s protection.
Late 2012/early 2013	Parties agreed to change arrangements for children. They agreed that the mother would spend time with the children each alternate week from Wednesday afternoon to before school Monday.
17/12/2012	Interim AVO made against father. After this parties agreed mother would spend time with kids from Wednesday afternoon until Monday morning.
25/02/2013	Father claims [Ms S] put [X] in a cold shower with his pj’s [pyjamas] on and he had no other pj’s [pyjamas] to wear so he went to bed in his undies and he was really cold. Father alleges [X] told him this and that it occurred because he wouldn’t do as [Ms S] told him to. Mother says this happened in December 2012, that [X] became irrational and angry, couldn’t calm him down and he was so angry he kicked a hole in the wall. They put [X] in shower and he calmed down. She then snuggled [X] in bed. Said that she acknowledges situation could have been handled better. No such incident has occurred since.
June 2013	Parties had ongoing issues as father refused mother time with kids.
1 July 2013	Mother alleges father refused to allow her to spend any time with the children. Mr Mitchell did not respond to her attempts to contact the children. Father says he turned off his phone so he wouldn’t have to be harassed by the mother.
10/07/2013	Father takes children to Dr E and says that [X] and [Y] told Dr about abuse. Dr reported this to DOCS.
July 2013	Father claims he stopped mother from having all three kids for more than every second weekend and the occasional day time visit on the basis of his concerns due to her declining mental health. Wants her to have supervised visits only. Mother did not see the children for three weeks.
19 July 2013	Mother files initiating application in FCC [Federal Circuit Court] requesting orders on interim basis for the following - ESPR [equal shared parental responsibility] between parties. - That the children live with the father. - Spend time with the mother during school term in each alternate week from after school. - Wednesday until before school on Monday. - Half school holiday periods. - All other times as agreed. On a final basis she sought the following: - ESPR [equal shared parental responsibility] between parties. - Children to live with the mother. - Children to spend time with the father each alternate week from after school Wednesday until before school on Monday. - Half school holiday periods. - All other times as agreed.
22/07/2013	Mother says she attended the children’s school. Hasn’t seen children in three weeks.
5/08/2013	Orders that provided inter alia: - Parties to attend CDC [child dispute conference]. - Matter for interim hearing 25/9/2013 - ICL [Independent Children’s Lawyer] to be appointed.
9/08/2013	Following first return date, mother’s solicitor sent proposal to the father to organise supervised time with children and communication via phone. She didn’t admit need for this but wanted to see kids. He refused to agree as the supervisors proposed were not independent. His solicitor proposed a fee for service basis to avoid waiting list at contact centre. Mother could not contact children via father’s mobile number and he had not provided her with a new one. Mr Mitchell’s solicitor did not provide a response to correspondence. Issues with regard to father completing intake process at contact centre. Mother not able to communicate with children via phone from 5 August 2013 until September 2013. Father says he suggested getting a phone for the children.
21/8/2013	NOAS [notice of address for service] for Nicole Dwyer ICL [Independent Children’s Lawyer] filed.
6/9/2013	Father files response seeking: - Parties have ESPR [equal shared parental responsibility] for children. - Children live with father and spend time with mother on supervised basis pending assessment of her cognitive function due to brain injury. - Sought various property Orders as well.
25/09/2013	FCC [Federal Circuit Court] Orders providing for, inter alia: - The parents have ESPR [equal shared parental responsibility] for the children. - That the children live with the mother. - The children spend time with the father as follows: o Each alternate week from after school on Wednesday until before school on Monday. o One half of school holiday periods. o One half of Christmas school holiday period. - Various other orders regarding time for father to spend with children. - Non-denigration order. - Changeover arrangements. - Father to attend personal counselling, with counsellor nominated by ICL [Independent Children’s Lawyer]. - Father to undergo drug testing. - Communication orders about medical issues.
September 2013	Father has not paid the mother child support since the children came into her care.
3/10/2013	Father gets report from Dr C saying he is not suicidal.
5/10/2013	Mr Mitchell did not call to speak with children as provided for in the orders. He has not called the children since this time.
8/10/2013	Father did not attend CDC [child dispute conference]. Mother did attend CDC [child dispute conference].
10/10/2013	Mother phoned the mobile to speak with the children on four separate occasions between 6:30 – 7.00pm. None of the calls were answered and she believes the phone was switched off.
14/10/2013	Father fails to comply with changeover Orders.
18/10/2013	Mother filed application in a case seeking interim orders that: - The Orders 4-9 made by FCC on 25/9/2013 be discharged. - Sole PR [parental responsibility]. - That the father spend time with the children supervised at the contact centre for two hours per fortnight and other times as can be facilitated by the Centre. - That the father pay the wife’s costs of an incidental to this application.
22/10/2013	Loretta Terrill files Notice of Withdrawal as Lawyer for the father.
18/11/2013	Father files a response seeking the following: - That the parties have ESPR [equal shared parental responsibility] for the children. - That the children live with both parties for equal time in week about arrangement. - Children spend time with mother for one half of school holidays. - All other terms as per initiating application filed on 19/7/2013 by the mother from and including sub point 3. - As per final orders.
18/11/2013	Mother’s solicitor received email from Mr Mitchell in a response to a letter they had sent him. Email said “ No worries, let Ms Mitchell know that [name omitted] who we had the 3 way orgy with has tested positive to aids - she may want to get tested…”Mother claims that the statement father made was false and that it was said to belittle or embarrass her.
20/11/2013	ICL [Independent Children’s Lawyer] requests father to undertake drug testing. To date no results have been received.
26/11/2014	FCC [Federal Circuit Court] Orders: - That the parties attend upon a family consultant for preparation of a family report. - The parties send copies of all of their court documents to the report writer.
4/12/2013	Mother’s solicitor sent letter to father. He responded “piss off”.
19/12/2013	ICL [Independent Children’s Lawyer] requests father to undertake drug testing. To date no results have been received.
January 2014	Mother says [X] said “I tell Dad I don’t like it at your house but I do. I like it the same but I can’t tell dad that or he will get mad. Sometimes I miss you but I can’t say anything. I have to go to my room, or cry in my bed.
Late January/Early Feb	Mr Mitchell left mother several nasty telephone messages over several days. Transcript of those messages attached to affidavit.
February 2014	[Ms S] says she picked up [X] and [Y] from school and [Y] said to her “Dad says I have to tell the court lady that I want fifty fifty time”. [X] immediately said “shut up [Y], don’t talk about it. You are gonna get dad in trouble”. [Y] then said “I can tell them things if I want to. You tell dad things about them so why can’t I tell mum things if I want to”. [X] replied “I do not [Y] you are the one that says mean things about mum and [Ms S] not me”.
Between Feb and April 2014	Mother says that the children would argue and dob on each other, telling [Ms S] and her what the others had said about them while they were with their father.
April 2014	Mother says that on 3 occasions during April the children said “dad told us to catch the bus to his house from school”. Father responds with “no law in this world that makes someone be nice to their ex-wife”.
11/04/2014	ICL [Independent Children’s Lawyer] requests father to undertake drug testing. To date no results have been received.
16/04/2014 (report prepared) Released on 5/5/2014.	Family Report – completed by Ms D 16 April 2014. Recommendations in regards to interim arrangements: 1. That the family report be released to the parties at the next court date. 2. That the children’s current living arrangements be suspended 3. That children live with the mother 4. That children’s time with the father be supervised by contact centre. 5. That father undergo sustained course of psychological counselling. 6. That [X] and [Y] continue to attend psychological counselling. 7. That the father not be permitted to attend the children’s school. 8. That arrangements be made for the children to have telephone communication with PGM [paternal grandmother] and paternal aunt in relation to [Y]. 9. That if feasible, that arrangements be made for the children to STW [spend time with] PGM [paternal grandmother] separate from the father. 10. That the mother and father complete the parenting Orders Program and the children the Jigsaw program. 11. That the father undergo clinical psychological assessment and follow any recommended treatment program and/or that an expert family report including a psychological assessment of the father be completed prior to final hearing.
5/05/2014	FCC [Federal Circuit Court] Orders providing for the following: - That the family report be released to the parties. - That the applicant shall by close of business on 8/5/2014 file and serve an application in a case and affidavit material in support of such interim relief that is sought. - That the matter be listed for further mention and directions and possible interim hearing on 12/5/2014. - Noted that during the adjourned period the father undertakes not to attend the children’s school or day care.
5/05/2014	Children told mother that Mr Mitchell would be at school that afternoon to pick them up and they could choose who they went with. This was a day when mother was due to collect children.
8/05/2014	Mother files Application in a Case seeking the following: - That orders 4-7 inclusive of the Orders made by FCC [Federal Circuit Court] on 25/9/2014 be suspended. - That pending further order the children STW [spend time with] father at supervised contact centre for 2 hours per fortnight and at such times and on such days as may be accommodated by the Centre. - Arrangements for facilitating the above time arrangements. - That the father undergo sustained psychological counselling. - That leave be granted to ICL [Independent Children’s Lawyer] to provide copy of the FR [family report] to the father’s counsellor. - That the father be injuncted and restrained from attending at the children’s school or day care. - That the parties and Ms S go to the Upper Murray Family Care for intake for completing of the POP’s [parenting orders] program. They will do what is required to participate and complete such program. - That the father be restrained from distributing or dissemination any of the material produced, prepared or filed in these proceedings, save for to his legal advisor for the purposes of obtaining family law advice.
8/05/2014	Mother says that Mr Mitchell left a voice message on her mobile threatening that he would contact the defence in her personal injury claim.
May 2014	Mother was putting [X] into bed and he talked about 50-50 time with the father. Incident at McDonalds with [Y]. Father raises voice at [Ms S], [Y] was scared.
9/05/2014	Father files Response to an Application in a Case seeking: - ESPR [equal shared parental responsibility] and week about arrangement.
9/05/2014	Father provides undertaking that he will not discuss mother in any way with his children.
12/05/2014	FCC [Federal Circuit Court ]Orders, inter alia: - Pending further Order, each party is restrained from discussing with the children any aspect of the family report, any issue relating to the other parent or matters that occur within the other parent’s household or any issue or allegation raised by anyone in these proceedings. (pursuant to 68B Family Law Act). - Father top [sic] provide ICL [Independent Children’s Lawyer] with details for counsellor, psychologist that he is attending together with an authority for ICL [Independent Children’s Lawyer] to speak with that person. - Father to attend appointments with that person not less than fortnightly and pending further Order. - Parties to go to Upper Murray Family Care enrol and complete POP’s [parenting order] program. - Matter listed for final hearing 24-26 September 2014.
15/05/2014	Children began attending counselling with Dr B.
10/06/2014	Mother putting [Y] to bed, [Y] starts talking about 50-50 time.
5/07/2014	Mother called the children to speak with them, [Y] answered the phone and was laughing. The mother asked her what was so funny and she said “when you ring it comes up on dad’s phone as ‘[first name omitted] the mole’.
10/07/2014	[Ms S] talks about [Y] stealing and lying.
Following Orders being made the children have continued to talk about having 50-50 time with the father, that the mother wants the kids to herself, that [X] doesn’t have to do homework at the father’s house until it’s 50/50. Father denies he is putting any pressure on the children about the 50-50 arrangement.
31/07/2014	ICL [Independent Children’s Lawyer] requests father to undertake drug testing. To date no results have been received.
29/08/2014	ICL [Independent Children’s Lawyer] requests father to undertake drug testing. To date no results have been received.