Rice & Powell - [2022] FedCFamC2F 161

Federal Circuit and Family Court of Australia
(DIVISION 2)
Rice & Powell [2022] FedCFamC2F 161

File number(s): CAC 1191 of 2016

Judgment of: JUDGE W J NEVILLE

Date of judgment: 18 February 2022

Catchwords: FAMILY LAW – Parenting – repetition of historical allegations of abuse against Mother’s Husband – previous consent Orders in 2017 where the parties knew of the same allegations that ultimately were re-litigated in 2021 – previous reports by family consultants expressed concern about Father psychologically pressuring the children – earlier reports by police indicate children being coached by Father – Mother recently unrepresented – earlier reports not referred to during final hearing or provided to the last family consultant – ultimately change in residence granted primarily because of older child’s persistent desire to live with the Father – significant reservations about Father’s evidence.

Legislation: Evidence Act 1995 (Cth), s.135
Family Law Act1975 (Cth), ss.60CA, 60CC, 65DAA(5), 68B

Cases cited:
Collu & Rinaldo [2010] FamCAFC 53
Johnson & Page (2007) FLC 93-344
M v M (1988) 166 CLR 69

Mazorski v Albright (2007) 37 Fam LR 518
McCall v Clark (2009) 41 Fam LR 483
Moose & Moose (2008) FLC 93-375

Slater v Light (2011) 45 Fam LR 41
Sigley v Evor (2011) 44 Fam LR 439
Vontek v Vontek [2017] FamCAFC 28

Division: Division 2 Family Law

Number of paragraphs: 158

Date of last submission/s: 18 November 2021

Date of hearing: 18 & 19 October 2021

Place: Canberra

Applicant: Mrs Powell on her own behalf

Solicitor for the Respondent: Snedden Hall and Gallop

Counsel for the Respondent: Ms Haughton

Independent Children’s Lawyer Wagga Wagga Family Lawyers

Counsel for the Independent Children’s Lawyer Dr S Leslie

ORDERS

CAC 1191 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS POWELL

Applicant

AND:
MR RICE

Respondent

order made by:

JUDGE W J NEVILLE

DATE OF ORDER:

16 december 2021

THE COURT ORDERS BY CONSENT THAT:
1.All previous parenting Orders be discharged.
2.The parties have equal shared parental responsibility for X (born: in 2007) (“X”) and Y (born: in 2011) (“Y”) (“the children”).

THE COURT ORDERS THAT:
3.Where the parties are unable to reach an agreement, prior to implementing any major long-term decision in relation to the children, while ever the children live with the Father, the following applies (if either of the children returns to live primarily with the Mother, the following Orders shall apply in the Mother’s favour in relation to that child/children):
(a)The Father will advise the Mother in writing of the proposed decision intended to be made by him;
(b)The Father will seek a written response from the Mother within 14 days;
(c)The Father will consider by reference to the best interests of the children, and any such response from the Mother prior to making the decision; and
(d)The Father will advise the Mother in writing as soon as reasonably practicable of his final decision.

Relocation
4.Subject to Order 26 below in relation to Y, the children live with the Father.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rice & Powell

Details

AGLC: Rice & Powell [2022] FedCFamC2F 161
Case: [2022] FedCFamC2F 161
Decision Date

CaseChat Overview and Summary

Rice & Powell [2022] FedCFamC2F 161 involved a long-running parenting dispute between the parties, with the Court having to decide whether the children should primarily reside with their mother or father. The Court was required to assess the evidence and determine the best interests of the children, taking into account the history of the case, the credibility of the parties and their respective partners, and the children's own wishes. In delivering the judgment, Judge W J Neville noted the flaws and faults on both sides and the significant amount of talk but relatively little evidence about any relevant risk. The Court found that the children should primarily reside with the father, with specific arrangements for contact and communication between the children and their mother. The Court also made orders for the protection of the children and their respective parents, and ordered psychological treatment for the children. The final orders discharged all previous parenting orders, established equal shared parental responsibility for the children, and set out detailed arrangements for the children's residence, time spent with each parent, communication, and various restraints and obligations for the parents.

Orders