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), 68BCases cited: Collu & Rinaldo [2010] FamCAFC 53
Johnson & Page (2007) FLC 93-344
M v M (1988) 166 CLR 69Mazorski v Albright (2007) 37 Fam LR 518
McCall v Clark (2009) 41 Fam LR 483
Moose & Moose (2008) FLC 93-375Slater v Light (2011) 45 Fam LR 41
Sigley v Evor (2011) 44 Fam LR 439
Vontek v Vontek [2017] FamCAFC 28Division: 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.
5.The Father may relocate the residence of the children to the Canberra/City B region.
6.Upon relocating the residence of the children, the Father must immediately notify in writing to the Mother the full address of the residence and all telephone or email contact details, and the Father agrees to notify the Mother within 24 hours of any changes to those contact details.
Parent’s time with children
7.Unless otherwise agreed in writing between the parties, X spend time with the Mother:
(a)Every second weekend from 5:00pm on Friday until 5:00pm on Sunday; and
(b)Half of the NSW gazetted school holidays.
8.Unless otherwise agreed in writing between the parties, Y spend time with the Mother at the following times:
(a)Every second weekend from 5:00pm on Friday until 5:00pm on Sunday; and
(b)The first half of two NSW gazetted school holiday periods, and for all of the remaining two NSW gazetted school holiday periods.
IT IS NOTED THAT, for the purposes of this Order, the full school holidays shall not be during the Christmas/New Year long holidays.
9.Unless otherwise agreed in writing between the parties, and notwithstanding any other Order, the children shall spend time with the parents at the following times:
(a)During the Easter period:
(i)From 10:00am to 5:00pm on Easter Sunday with the Mother in years ending with an odd number; and
(ii)From 10:00am to 5:00pm on Easter Sunday with the Father in years ending with an even number
(b)During the Christmas period:
(i)In years ending with an odd number:
A.From 10:00am to 5:00pm on Christmas Day with the Father; and
B.From 10:00am to 5:00pm on Boxing Day with the Mother.
(ii)In years ending with an even number:
A.From 10:00am to 5:00pm on Christmas Day with the Mother; and
B.From 10:00am to 5:00pm on Boxing Day with the Father.
(c)From 10:00am to 5:00pm on Mother’s Day (Sunday) with the Mother.
(d)From 10:00am to 5:00pm on Father’s Day (Sunday) with the Father.
10.The children’s time with the Mother can occur at her residence
Changeover
11.Unless otherwise agreed in writing between the parties, for the purpose of Orders 7 – 10, changeover shall occur at an agreed location roughly half-way between the parties’ residences. Absent agreement regarding the changeover venue, it shall be at McDonalds at Town C.
Communication
12.The children have telephone or other video-conferencing communication with the Mother:
(a)At 7:00pm with the Mother to initiate the call:
(i)Each Wednesday; and
(ii)Alternate Sunday during the week that the children do not see the Mother.
13.Notwithstanding any other Order, the children are at liberty to contact the Mother in accordance with their wishes.
14.For the purposes of communicating information the Mother and Father will:
(a)Communicate by telephone all matters of urgent nature; and
(b)In all other cases, communicate by an agreed parenting app (such as My Family Wizard, Talking Parents or similar) to communicate about all day-to-day matters relating to the children, including arrangements for each parent to spend time with the children, with such communication to be limited to the care and wellbeing of the children.
15.The parents attend a facilitated parenting meeting facilitated by D Families or other agreed organization at a frequency agreed between the parents, but failing agreement, at least 2 times per year, with the costs of such a meeting to be shared equally between the parents. For the purposes of this Order the parents will forward a list of issues for discussion (if any) to the other parent via the parenting app no fewer than 7 days prior to the scheduled meeting.
Medical
16.The children engage in psychological treatment with an appropriate service in the local area to assist with managing their mental health and transitional needs.
17.The parties shall inform each other, as soon as reasonably practicable, of any medical condition, significant health issue or other illness suffered by the children, via telephone in the case of emergencies, or otherwise, in writing via the parenting app.
18.The parties shall, at all times, keep each other informed of any appointments with any medical practitioner, counsellor, or service that the children engage with, and that these Orders operate as authority for the parties to obtain information from any such practitioner or service.
School Information
19.The parties authorise the schools attended by the children to give the parties information relating to the children’s educational progress, and other school related activities and supply them with copies of notices (including but not limited to passwords for any school online portal), school reports, photographs, certificates, and awards obtained by the children (at the cost of the requesting party).
Restraints
20.For the protection of the children, and of Mr Powell, the Mother is to ensure that her Husband, Mr Powell, does not physically discipline or harm the children at any time.
21.For the protection of the children, and equally for the protection of Mr Powell in the light of the ongoing but unsubstantiated assertions against him, the Mother is to ensure that the children are not left in the sole care of Mr Powell without another adult being substantially present.
22.The parties are restrained from speaking in a manner that is insulting, belittling, rebuking, or denigrating of each other or each other’s family members, or allowing any other person to do so in the presence or hearing distance of the children.
23.The parties are restrained from discussing these Court proceedings with the children, or doing so in their presence, or allowing any other person to do so.
24.Pursuant to section 68B of the Family Law Act 1975, and on a without admissions basis, each party is restrained by injunction from:
(a)Shouting at the children;
(b)Physically disciplining or threatening to physically discipline the children in any way or from allowing any other person to physically discipline or threaten to physically discipline the children in any way during those periods that the children are in their respective care; or
(c)Exposing the children to conflict or violent behaviour (including physical and verbal abuse) during those periods that the children are in their respective care.
25.During the time the children are with either parent, that parent shall:
(a)Respect the privacy of the other parent and not question the children about the personal life of the other parent or their families;
(b)Speak of the other parent respectfully; and
(c)Not denigrate or insult the other parent or their family in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children.
26.The Independent Children’s Lawyer is to:
(a)Explain these Orders to the children;
(b)Remain in the matter for the next 9 months so that on two occasions she can meet with the children and check-in with how they are going (Y in particular); and,
(c)Should the Independent Children’s Lawyer form a view that Y wishes to return to live primarily with his Mother (noting that he wishes anyway to live in a week-about arrangement), absent agreement between the parties regarding live with and spent time with Orders regarding any child returning to live primarily with the Mother, the Independent Children’s Lawyer is at liberty to relist the matter to determine such a change in residence and related matters.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Powell & Rice has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE W J NEVILLE:
Introduction
This is a very long-running parenting matter. It involves two children: 14 year old X and 10 year old Y (“the children”). I delivered very long oral reasons in mid-December. At that time, and particularly because the Mother (Ms Powell; formerly, Ms Powell) was relatively recently self-represented, I advised the parties and the Independent Children’s Lawyer (“the ICL”) that I would provide the reasons in written form. These are those reasons revised from the transcript.
History and context are important matters in any litigation. Among other things, they can explain a number of things that might otherwise remain hidden but nonetheless are crucially relevant to the determination of matters that are currently before the Court. In the course of these reasons, I provide a number of items of history and context that were never addressed or referred to either at the final hearing or in submissions. In part, this may be explained by the simple fact that, although there are now many other actors on the litigious stage, and past legal thespians (to keep the theatrical metaphor running briefly) have been replaced, the parents and I have been the only persons involved in the matter since it began, now somewhat lost in the mists of time, in 2016.
Put very shortly here but noted in detail later in these reasons, nearly everyone at the latest final hearing really only focussed on one issue, namely Mr Powell and a range of mostly historical matters. It almost became a single-issue trial of the allegations against Mr Powell. Proper or more balanced attention should also have been paid to other issues, such as the actions of the Father and also of X, notably in the light of material that was never referred to, such as two Memoranda from Ms E, and a Family Report of Ms F that was released to the parties just before the 2017 final hearing. But more of these things later in these reasons.
Background
This Court made final parenting Orders by consent on 23rd November 2017 regarding the children. Those Orders provided for the children to live with their Mother in City G(strictly speaking, a township called Town H, the road to which one passes on the way into City G, as I did for the 14 years or so when I was running the circuit to that delightful mini-central western metropolis), and to spend significant and substantial time with the Father. Those Orders were made in circumstances where there were many accusations of abuse by one or either party against the other, including in particular, against the Mother’s Husband, Mr Powell. Many similar accusations have come and gone since those Final Orders, while quite a few of them have remained and most recently have been – literally – regurgitated.
Quite a few accusations against Mr Powell, in my view quite improperly, from prior to the 2017 Final Consent Orders, were raised and relied upon in the current litigation. Formal objection should have been taken to them. Regrettably, this never happened. This should not have occurred for the simple and obvious reason that the parties entered Final Consent Orders in 2017 knowing full well at that time the accusations being raised by one or both of them. The parties also well knew that the accusations had, by and large, never been established. Notwithstanding these allegations, in 2017 the parents resolved the matter by consent. But the old allegations were nonetheless ventilated, often if not usually in a most prejudicial way, and doubtless with prejudicial intent, against the Mother and Mr Powell.
In general terms, in my view, there were, and are, flaws and faults on both sides of the current parenting divide. The consequence of this is that, while there are few ideal outcomes in family law litigation, there are even less optimal outcomes in the circumstances that prevail in this matter. Indeed, every possible outcome here is really quite problematic. This was and remains accentuated because two principal characters in this drama were never interviewed by the Court expert, Dr J. They were the Mother’s Husband, Mr Powell, and the Father’s partner, Ms K. Dr J tried to contact both of them. She left messages for them; but neither of them were interviewed. Inexplicably, both indicated (through their respective partner or spouse) that they never received the messages left by Dr J. These were significant and most unfortunate omissions. Given the importance and significance of each person in each of the households, this lack and omission was very unfortunate. It made, and makes, the Court’s decision even more difficult and delicate. For completeness, especially given that no one mentioned it, in the earlier proceedings, Mr Powell filed an Affidavit on 4th August 2016 in which he denied the allegations levelled against him by the Father.
At the outset I remind myself of the Court’s responsibilities to make Orders that are (a) in the best interests of the children (pursuant to s.60CA of the Family Law Act 1975 (Cth) (“the Act”)), and (b) which are relevantly protective of them (pursuant to s.60CC(2A)). The Court’s protective responsibilities are very much to the fore here.
The converse is true, namely, the Court must properly assess any relevant risk, about which here there was a significant amount of talk but relatively little evidence. Basic principles are well known and are set out in cases of long-standing, such as by the High Court in M v M (1988) 166 CLR 69, and by the Full Court in Johnson & Page (2007) FLC 93-344, and Slater v Light (2011) 45 Fam LR 41.[1] I do not need to set out those principles.
[1] M v M (1988) 166 CLR 69; Johnson & Page (2007) FLC 93-344; Slater v Light (2011) 45 Fam LR 41.
Documents admitted into evidence
I record the following admitted documents:
(a)The documents set out in the Exhibits List were formally admitted into evidence (except the Report of Dr J, Exhibit A, which I deal with separately later in these reasons); and
No. of Exhibit Description of Exhibit A
Family Report by Dr J dated 31 March 2021 B1 Page 100 of Respondent Father’s Tender Document B2 Page 104 of Respondent Father’s Tender Document FTB1 Pages 18 to 29 of Father’s Tender Bundle FTB2 Page 50 of Father’s Tender Bundle FTB3 Pages 62 to 63 of Father’s Tender Bundle FTB4 Pages 91 to 92 of Father’s Tender Bundle FTB5 Page 96 of Father’s Tender Bundle FTB6 Pages 101 to 103 of Father’s Tender Bundle SC1 Family Report by Ms F dated 11 November 2017 MD1 Family Consultant Memorandum of Ms E dated 14 September 2016 MD2 Family Consultant Memorandum of Ms E dated 18 January 2019
(b)The chronology of the ICL that is part of her Case Outline; and
Date Event 1982 Ms K (the Father’s partner) is born 1983 Father is born 1985 Mother is born 1985 Mr Powell (the mother’s partner) is born 2005 Parties commence relationship 2007 The child X is born 2010 The parties separate 2011 The child Y is born 2012 The mother commences a relationship with Mr Powell 2013 The father commences a relationship with Ms K 2014 The child L is born to the mother and Mr Powell 2016 X discloses in her diary abuse by Mr Powell Aug 2016 Father commences court proceedings 5 Aug 2016 X tells Ms K about Mr Powell using physical discipline 11 Aug 2016 Mr Powell files an undertaking to the court to not physically discipline the children 6 Sept 2016 Y said he does not like Mr Powell hurting him 12 Sept 2016 Y tells the father and Ms K that Mr Powell calls the father “deadbeat dad” and has smacked him three times this week 13 Sept 2016 Y says that Mr Powell hurts the children and flicks them when the mother 28 October 2016 The father and Ms K take Y to the hospital after Y discloses that Mr Powell squeezed his neck May 2017 Y says that Mr Powell that Mr Powell pulls him off the bed and he hit his head 14 June 2017 Incident which results in Mr Powell being charged with Assault Occasioning Actual Bodily Harm 19 June 2017 Father sees Y had bruising to his ear and a scab line cut. Y says he initially hit his head on concrete but then says that Mr Powell lifted him off the ground by the ears and then threw him on the bed. The police are called and the father takes Y to hospital 5 Aug 2017 The police take out an ADVO against Mr Powell with Y as the protected person 18 Oct 2017 X says Mr Powell accidentally kicks her instead of the dog 23 Nov 2017 Final orders are made by consent that:
The parties have equal shared care;
The children live with the mother;
The children STW the father (inter alia) alternate weekends Friday to Wednesday and half short school holidays and “week about” in the summer holidays;
The parties have liberty to relist the matter if Mr Powell is convicted of assault
2017 The child M is born to the mother and Mr Powell 23 Aug 2018 Mr Powell is found not guilty of assaulting Y Nov 2018 X ran away from home and went to the father’s home. Father proceeded to withhold the child from the mother. 1 Nov 2018 The mother commenced these proceedings seeking a recovery order. The court ordered for X to be returned to the mother’s care Nov & Dec 2019 DCJ interviews the children and the mother. The mother says that DCJ told her that they had not seen anything to concern them 2020 Ms K moves to Town N for work 4 Feb 2021 Orders made in relation to documents from NSWPolice 31 March 2021 Dr J’s report is released 10 April 2021 X says her mother is not taking to her and the boys are going to vacation care 22 April 2021 X says that Mr Powell said he is glad that she will be gone in October and that she will not see M again and that he is going to tell M how worthless she is to them. The mother and Mr Powell take X’s phone off of her.
The mother claims that she has not talked to X about the report.
4 May 2021 X says that she is questioned by the maternal aunt, Ms O, about why she does not want to live with her mother 22 May 2021 X is telephoned by Ms K and X says she is sad because Mr Powell and her mother told her that if she did not want to be part of their family then she need not go on holiday with them. 25 May 2021 X contacts Ms K by Snapchat and says that Mr Powell and her mother have called her a sociopath and called her a liar. Y also calls Ms K and tells her about Mr Powell and his mother yelled at him about the case. 11 June 2021 X self-harms. Father and Ms K take X to hospital. Father withholds X from the mother. The mother says that Y misses X and that she would be missing him. 17 June 2021 The mother says that Y wet the bed which he has not done for many years.
ICL met with the children.
The father files an application in a case, inter alia, seeking to prevent Mr Powell coming into contact with the children.
18 June 2021 Orders made requiring the father to return X to the mother but the ICL is to meet with the child. That Mr Powell is to remove himself from the contest and have as little as possible to do with X. 27 June 2021 X says her mother cannot take time off work and therefore her mother cannot take X to her psychologist. The following day the mother sends a text to the father which states that the psychologist appointment was postponed to 14 July due to covid. However, the father checks on this and it is discovered that the mother cancelled the appointment. 14 July 2021 Date of X’s appointment with her psychologist 24 July 2021 X cuts herself again, saying that her mother and Mr Powell were fighting 30 July 2021 The father and Ms K commence foster 2 children 8 Sept 2021 Y tells X he has to sleep on the floor of her room as punishment
The Applicant’s Minute of Orders sought:
The Applicant’s Minute of Orders Sought, provided to Chambers in the Applicant’s Written Submissions filed on 18 November 2021, were as follows (emphasis in original):
1. That all previous parenting orders be discharged.
2. That the parties have equal shared parental responsibilities for both X (born in 2007) and Y (born in 2011) (The children)
3. That X is to live with the Father.
4. That X shall spend time with the Mother as agreed with Father or failing agreement as follows;
a) Each alternate Sunday from 10am to 4pm
b) Terms 1,2 and 3 of school holidays from conclusion of school for 7 nights each term of holidays
c) Term 4 school holidays will be week about arrangement
d) Special occasions as follows;
i) In each odd year from 5pm Easter Saturday to 4pm Easter Sunday
ii) In each odd year from 4pm Christmas Eve to 4pm Christmas Day
iii) Mother’s Day wknd from 5pm Friday to 5pm Sunday
5. That Y is to live with the Mother.
6. Y shall spend time with the Father as agreed with Mother but failing agreement as follows;
a) Each alternate Friday after school until 9am Monday dropped off to school
b) Terms 1,2 and 3 of school holidays from conclusion of school until 2pm half way through holidays for each term
c) Term 4 school holidays will be week about arrangement
d) Special occasions as follows;
i) In each even year from 5pm Easter Saturday to 5pm Easter Sunday
ii) In each even year from 4pm Christmas eve to 4pm Christmas Day
iii) Father’s Day wknd 5pm Friday to 5pm Sunday
7. That both parties need to keep one another up to date with current address, telephone number and email address at all times
8. Changeover will occur at fox street McDonald’s City G, unless agreed otherwise
9. The children will have telephone communication with each parent every Sunday, Wednesday and Friday at 7pm. Also, at any other time requested by the children
10. For the purpose of communication between the Mother and Father they will;
a) Communicate via telephone all matters of urgent nature and
b) Communicate by an agreed parenting app about day-to-day matters relating to the children, including arrangements for each parent to spend time with the children
11. That the children attend regular counselling
12. That the parties shall inform each other of any medical condition, significant health issue or illness suffered by the children as soon as possible, via telephone in emergencies otherwise email.
13. That the parties shall at all times keep each other informed of any appointments with medical practitioners, councilors or service children engage with. And that all information is recalled to other party after each appointment
14. That the parties authorize the schools attended by the children to give the parties all information regarding the children’s educational progress, and any other school related activities. Also, to supply them with copies of notices, school reports, photographs, certificates and awards obtained by the children
15. That the parties are retrained from speaking in a manner that is insulting, belittling, rebuking or denigrating of each other or each other’s family members, or allowing any other person to do so in the presence or hearing distance of children
16. That during the time the children are with either parent, that the parent shall;
a) Respect the privacy of the other parent and should not question the children about the personal life of the other parent or their family
b) Speak of the other parent respectfully
c) Not denigrate or insult the other parent or their family in the presence or hearing of the children and use their best endeavors to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children
17. Prior to contacting any third party, agency or government body, each parent shall inform the other parent of aby comment made by the children that gives that parent concern about the other parent’s household. For the purpose of this order, tbe first communication about concerns shall be by telephone to all contact numbers held for the other parent.
The Respondent’s Minute of Orders sought
The Respondent’s Minute of Orders Sought, provided to Chambers in the Respondent’s Written Submissions filed on 17 November 2021, were as follows (emphasis in original):
1. That all previous parenting Orders be discharged.
Parental Responsibility
2. That the parties have equal shared parental responsibility for X born in 2017 ('X') and Y born in 2001 I ('Y') ('the Children').
3. That where the parties are unable to reach an agreement, prior to implementing any major long-term decisions in relation to the Children, the following applies:
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 l4-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. That the Children live with the Father.
5. That the Father may relocate the residence of the Children to the Canberra/City B Region
6. That upon relocation of the residence of the Children, the Father must immediately notify in writing to the Mother, the full address of the residence and all telephone or email contact details, and the Father agrees to notify the Mother within 24 hours of any changes to those contact details.
Parents' Time with Children
7. That subject to Order 17, X shall spend time with and communicate with the Mother in accordance with her wishes, and Y shall spend time with the Mother as agreed between the parties in writing, and failing agreement and subject to the Mother giving at least 48 hours' notice to the Father that she will be spending time with Y:
a. each alternative Sunday from 10:00 am to 5:00 pm commencing the first Sunday after these Orders; and
b. the time that the Children spend with the Mother pursuant to Order 7 of these Orders is suspended during one half of the school holidays, and unless otherwise agreed in writing, during:
i. the first half of school holidays in odd numbered years; and
ii. in the second half of school holidays in even numbered years.
8. That unless otherwise agreed in writing between the parties, and notwithstanding any other Order, X in accordance with her wishes and Yin accordance with this Order shall spend time with the Mother and Father at the following times:
a. during the Easter period:
i. in years ending with an odd number:
1. from 10:00am to 5:00pm on Easter Sunday with the Mother.
ii. in years ending with an even number:
1. from 10:00am to 5:00pm on Easter Sunday with the Father.
b. during the Christmas period:
i. in years ending with an odd number:
1. from l0:00am to 5:00pm on Christmas Day with the Father.
2. from 10:00am to 5:00pm on Boxing Day with the Mother
ii. in years ending with an even number:
1. from 10:00am to 5:00pm on Christmas Day with the Mother.
2. from 10:00am to 5:00pm on Boxing Day with the Father.
c. on Mother's Day:
i. from l0:00am to 5:00pm on Mother's Day (Sunday) with the Mother.
d. on Father's Day:
i. from 10:00am to 5:00pm on Father's Day (Sunday) with the Father.
Changeover
9. That unless otherwise agreed in writing between the parties, for the purpose of Order 7 and 8, changeover shall occur at McDonald's on P Street, Suburb Q NSW.
Communication
10. That Y have telephone or other video conferencing communication with the Mother at 7:00pm, with the Mother to initiate the call:
a. each Wednesday; and
b. alternate Sunday during the week that the Children do not see the Mother:
11. That notwithstanding any other Order, the Children are at liberty to contact the Mother in accordance with their wishes.
12.That for the purposes of communicating information the Mother and Father will:
a. communicate by telephone all matters of urgent nature; and
b. communicate by an agreed parenting app (such as My Family Wizard, Talking Parents or similar) to communicate about all day-to-say matters relating to the Children, including arrangements for each parent to spend time with the Children with such communication to be limited to the care and wellbeing of the Children.
Medical
13. That the Children engage in psychological treatment with an appropriate service in the local area to assist with managing their mental health needs.
l4. That the parties shall inform each other, as soon as reasonably practicable, of any medical condition, significant health issue or illness suffered by the Children, via telephone in the case of emergencies, or otherwise, via email.
15. That the parties shall, at all times, keep each other informed of any appointments with any medical practitioner, counsellor, or service that the Children engage with, and that these Orders operate as authority for the parties to obtain information from any such practitioner or service.
School Information
16. That the parties authorise the schools attended by the Children, in this Order, to give the parties information relating to the Children's educational progress, and other school related activities and supply them with copies of notices (including but not limited to passwords for any school online portal), school reports, photographs, certificates, and awards obtained by the Children (at the cost of the requesting party).
Restraints
I7. That the Mother be restrained from allowing or permitting the Children to be in the presence or hearing of Mr Powell, or permitting any other person, to do so and in the event that Mr Powell comes into contact with the Children or attempts to communicate with them, the Mother shall forthwith cause the Children to be removed from his presence, or hearing, and shall communication with the Father and the Father shall be at liberty to collect the Children.
18. That the parties are restrained from speaking in a manner that is insulting, belittling, rebuking, or denigrating of each other or each other's family members, or allowing any other person to do so in the presence or hearing distance of the Children.
19. That pursuant to s 68B of the Family Law Act 1975 and on a without admissions basis, each party is restrained by injunction from:
a. shouting at the Children;
b. physically disciplining or threatening to physically discipline the child in any way or from allowing any other person to physically discipline or threaten to physically discipline the Children in any way during those periods that the Children are in respective care; or
c. exposing the Children to conflict or violent behaviour (including physical and verbal abuse) during those periods that the Children are in their respective care.
20. That during the time the Children are with either parent, that parent shall:
a. respect the privacy of the other parent and not question the Children about the personal life of the other parent or their family;
b. speak of the other parent respectfully; and
c. not denigrate or insult the other parent or their family in the presence or hearing of the Children and use their best endeavours to ensure that other do not denigrate or insult the other parent in the hearing or presence of the Children.
ICL Minute of Orders sought
The ICL’s Minute of Orders Sought, provided to Chambers in the ICL’s Written Submissions filed on 2 November 2021, were as follows (emphasis in original):
1. That all previous parenting orders be discharged.
2. That the parties have equal shared parental responsibility for X born in 2017 (‘X’) and Y born in 2011 (‘Y’) (‘the Children’).
3. That where the parties are unable to reach an agreement, prior to implementing any major long-term decision in relation to the Children, the following applies:
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. That the Children live with the Father.
5. That the Father may relocate the residence of the Children to the Canberra/City B Region
6. That upon relocation the residence of the Children the, Father must immediately notify in writing to the Mother, the full address of the residence and all telephone or email contact details, and the Father agrees to notifying the Mother within 24 hours of any changes to those contact details.
Parents’ time with children
7. That unless otherwise agreed in writing between the parties, the Children spend time with the Mother at the following times:
a. Every second weekend from after school on Friday until 5:00pm on Sunday; and
b. The first half of each of the NSW gazetted school holidays.
8. That unless otherwise agreed in writing between the parties, and notwithstanding any other Order, the Children shall spend time with the parents at the following times:
a. during the Easter period:
i. in years ending with an odd number:
1. from 10:00am to 5:00pm on Easter Sunday with the Mother.
ii. in years ending with an even number:
2. from 10:00am to 5:00pm on Easter Sunday with the Father.
b. during the Christmas period:
i. in years ending with an odd number:
1. from 10:00am to 5:00pm on Christmas Day with the Father.
2. from 10:00am to 5:00pm on Boxing Day with the Mother
ii. in years ending with an even number:
1. from 10:00am to 5:00pm on Christmas Day with the Mother
2. from 10:00am to 5:00pm on Boxing Day with the Father.
c. on Mother’s Day:
i. from 10:00am to 5:00pm on Mother’s Day (Sunday) with the Mother.
d. on Father’s Day:
i. from 10:00am to 5:00pm on Father’s Day (Sunday) with the Father.
Changeover
9. That unless otherwise agreed in writing between the parties, for the purpose of Order 7 and 8, changeover shall occur at a location nominated by the Mother, and that the parties agree to a location roughly half-way between the Father’s residence and the Mother’s nominated location for changeover.
Communication
10. That the Children have telephone or other video conferencing communication with the Mother:
a. at 7:00pm with the Mother to initiate the call:
i. each Wednesday; and
ii. alternate Sunday during the week that the Children do not see the Mother:
11. That notwithstanding any other Order, the Children are at liberty to contact the Mother in accordance with their wishes.
12. That for the purposes of communicating information the Mother and Father will:
a. communicate by telephone all matters of urgent nature; and
b. communicate by an agreed parenting app (such as My Family Wizard, Talking Parents or similar) to communicate about all day-to-day matters relating to the Children, including arrangements for each parent to spend time with the Children, with such communication to be limited to the care and wellbeing of the Children.
13. That the parents attend a facilitated parenting meeting facilitated by D Families or other agreed organization at a frequency agreed between the parents, but failing agreement, at least 2 times per year, with the cost of such a meeting being facilitated will be shared equally between the parents. For the purposes of this Order the parents will forward a list of issues for discussion (if any) to the other parent via the parenting app no fewer than 7 days prior to the scheduled meeting
Medical
14. That the Children engage in psychological treatment with an appropriate service in the local area to assist with managing their mental health needs.
15. That the parties shall inform each other, as soon as reasonably practicable, of any medical condition, significant health issue or illness suffered by the Children, via telephone in the case of emergencies, or otherwise, via email.
16. That the parties shall, at all times, keep each other informed of any appointments with any medical practitioner, counsellor, or service that the Children engage with, and that these Orders operate as authority for the parties to obtain information from any such practitioner or service.
School Information
17. That the parties authorise the schools attended by the Children, in this Order, to give the parties information relating to the Children’s educational progress, and other school related activities and supply them with copies of notices (including but not limited to passwords for any school online portal), school reports, photographs, certificates, and awards obtained by the Children (at the cost of the requesting party)
Restraints
18. That the Mother be restrained from allowing or permitting the Children to be in the presence or hearing of Mr Powell, or permitting any other person, to do so and in the event that Mr Powell comes into contact with the Children or attempts to communicate with them, the Mother shall forthwith cause the Children to be removed from his presence, or hearing, and shall communication with the Father and the Father shall be at liberty to collect the Children.
19. That the parties are restrained from speaking in a manner that is insulting, belittling, rebuking, or denigrating of each other or each other’s family members, or allowing any other person to do so in the presence or hearing distance of the Children.
20. That pursuant to s 68B of the Family Law Act 1975 and on a without admissions basis, each party is restrained by injunction from:
a. shouting at the Children;
b. physically disciplining or threatening to physically discipline the child in any way or from allowing any other person to physically discipline or threaten to physically discipline the Children in any way during those periods that the Children are in respective care; or
c. exposing the Children to conflict or violent behaviour (including physical and verbal abuse) during those periods that the Children are in their respective care.
21. That during the time the Children are with either parent, that parent shall:
a. respect the privacy of the other parent and not question the Children about the personal life of the other parent or their families;
b. speak of the other parent respectfully; and
c. not denigrate or insult the other parent or their family in the presence or hearing of the Children and use their best endeavours to ensure that other do not denigrate or insult the other parent in the hearing or presence of the Children.
The Father’s evidence
Somewhat summarised, the Father’s brief oral evidence was as follows. It was briefer than it should have been because the Mother was not legally represented; she asked very few questions.
The Father’s Counsel asked the Father the following general questions. He confirmed that he was the full time carer of his step-son R, and that he currently lives in the suburb of Suburb S in City G. In this regard, he said that he was happy to share trips between City G and Canberra with the Mother should the children come to live with him.
Next he was asked what might be the situation generally if X lived with him, and Y remained living with his Mother. He said that this would be devastating for X and that he could not see this happening. This was in circumstances where Dr J had recorded in her report that X considered Y to be “the most annoying person in the house”. The Father agreed with this assessment but nonetheless said that X cared for Y very much. In short, he said that separating the siblings would be terrible for both of them.
The Father confirmed that Y has a close relationship with the Mother’s other, younger children, M and L.
The Father’s primary cross-examination was undertaken by Counsel for the ICL. The Father first confirmed that he usually stays in Canberra 5 nights per fortnight and for the remainder of the time lives in City G. He also confirmed that in Dr J’s report she recorded that he had some symptoms of anxiety. He said that he had seen his GP about this anxiety and some “panic attacks”. These things tended to manifest themselves when he was stressed. He confirmed however that his consultation with the GP regarding his anxiety had really only occurred many years ago when the litigation commenced, which he said was in 2017.
It followed from this that he had not seen a GP or counsellor about his anxiety in recent years. He said he had been able to deal with his anxiety, which is to say that he has learnt how to manage it with the assistance of his new partner. He said he acknowledged that it was important to seek help. By way of observation, plainly the Father either has not or does not recognise any relevant stress in recent times, notwithstanding the ongoing litigation.
The Father said he agreed that the children needed some psychological support and that X has been seeing a psychologist for about a month or so, whereas Y is not currently seeing anyone other than a school counsellor, which ceased a short time ago. The Father agreed that it was probably useful and beneficial for Y to see someone but no arrangements had been put in place thus far. There had also been some discussions with Y following reports of him stealing certain things from school. He said he had a plan in place if this happened again but he did not reveal what it was. He said he was content to agree to an Order to do all things necessary to ensure Y received external psychological support.
Mr Rice said that he had very briefly heard of a parenting communication App and that he would be happy to use one but otherwise he had no knowledge of such means of communication.
The Father confirmed that he and the Mother disagree in relation to either or both of Y’s need for medication regarding his ADHD diagnoses, or other details concerning it. He confirmed that he and the Mother currently have and seek equal shared parental responsibility for both children. He said that in his view medication is best for Y, notwithstanding the Mother disagreeing with this course. He said that endeavouring to resolve matters with the Mother by counselling had not worked in the past. He effectively said that if he could, he would make the decision for medication for Y and inform the Mother of this later.[2]
[2] I note that in his Minute of Orders Sought, the Father initially had proposed that the children be separated, with X to live with him and Y to live primarily with the Mother. His oral evidence was, therefore, inconsistent with his earlier Orders Sought.
In response to questions regarding the Mother’s strengths as a “Mother”, he said that she has patience and at times she can be a fantastic Mother. Otherwise, he could think of nothing to say in this regard. In relation to himself as a parent, the Father said that he thinks of himself as a “good parent”. Indeed he said, completely unabashed, that he did not know what he could improve on. Respectfully, this showed astonishing lack of insight and a perfection most parents would blanch at. This included him confirming that he had not completed any parenting courses since 2016. Again, respectfully, perfection knows no bounds. Fortunately, he did say that he would act upon one of Dr J’s recommendations and would do the course or courses that she recommended, but that he had not pursued any of them yet.
He confirmed his position was that he believed, and had always believed, the allegations against Mr Powell to be true. This was in circumstances where he confirmed that the children did not always tell the truth but that he generally believed them. He confirmed also that Y has often not told the truth at school. When it was put to him that X may be painting a picture of her life in the Mother’s home that was not completely accurate or truthful, in my view, very surprisingly, the Father said that he did not believe this; nor did he consider it to be a possibility. In my view, this not only showed again the Father’s lack of insight, but it bordered on the astonishing given the history of X, particularly noted in the reports of Dr J and Ms E referred to below.
Notwithstanding the comments just recorded from the Father’s evidence, upon further questioning he conceded, to a degree, that the children could be somewhat “creative” in their story telling of events and that they could be telling things to each parent which that parent might wish to hear.
One set of allegations against Mr Powell, which was the subject of police investigation and prosecution, ultimately led to Mr Powell being found not guilty of the charges laid against him. The Father said he was unsure whether or not Mr Powell was or was not convicted. One might have reasonably thought that given the gravity of the allegations against Mr Powell, the Father would have ensured that he had the best acquaintance possible with the facts of all of the allegations raised. Plainly, he did not.
The Father confirmed that the last Apprehended Domestic Violence Order (“ADVO”) expired in February 2019 and that, to the best of his knowledge, no further ADVO had been taken out by anyone against either Mr or Ms Powell. He confirmed also that, to the best of his knowledge, child welfare authorities had been informed of the allegations against Mr Powell and that no action had been taken by them in any respect involving the children. In this regard, the Court pointed out to the Father that there were notes from City G Hospital relating to one particular incident involving Y, which confirmed that there was no bruising on Y from anything alleged to have been done to him by Mr Powell or otherwise. In the Court’s view, these medical notes were significant, or rather the lack of medical notes of any “red flags” about the care of the children were particularly important.
All of these matters led Counsel for the ICL to put to the Father that, because (a) Mr Powell has not been convicted of any offence, (b) medical records have confirmed that there are/were “no red flags at the time”, and (c) care and protection services and the police have taken no action against Mr Powell (except for a single instance that led to a “not guilty” verdict), whether or not he still believed the children in relation to their accounts of various events/allegations. Remarkably, in my view, the Father said that he did. Put more starkly or bluntly, objective, independent evidence from statutory authorities confirmed no issues regarding Mr Powell; the Father still chose to believe the “creative” accounts of the children. The old saying of “throw enough mud and it will stick” seems rather apposite here.
The Father confirmed that he thought that Y would miss L and M (as noted earlier) and similarly he thought that X’s relationship with the two younger boys was an important relationship. Counsel for the ICL put to the Father that there was nothing in his Orders sought that was directed to facilitating these relationships between siblings. To this, the Father said that he was happy for the Mother and the siblings to be together without Mr Powell present. He also said that any of the children who were not living with him were welcome at his residence any time. He also said that he would facilitate Facetime calls between the children – on the suggestion of Counsel for the ICL.
In response to questions about what he would do in circumstances where Y wanted to see his Mother (outside any specified Orders), the Father said that he would allow Y to Facetime his Mother or call any third party. In a similar vein, he said that if the children were distraught in any way he was happy to take the children to see their Mother, but again provided that Mr Powell was not present.
The Father said that he agreed with the comment in Dr J’s Report to the effect that X has had some difficulty making and sustaining friendships. This was also likely to be impacted by a change in school for her upon her commencing to live with the Father. The Father observed that, in his view, X was excited about the prospect of a new school and “a new start”. He accepted that there were no specific Orders sought in relation to school holiday time but said that he thought a week on week off arrangement during school holidays was likely to work best. Conversely, he said that large blocks of time away from either parent would not reasonably or properly work.
When asked whether or not a restraint on Mr Powell from physically disciplining the children in any way was in place, what difference if any would that make. To this the Father said that there had been a similar protection in place in the past and that (in his view) the children still “got assaulted” during that period. Put in slightly different terms, the Father said that allegations against Mr Powell have continued despite there being an undertaking from Mr Powell not to hurt the children.
I noted a number of inconsistencies in the Father’s evidence before the Court. For example, it was stated that Y says that Mr Powell abused him, yet Y still wants to spend equal time at both houses. The Father said that he accepted such an inconsistency but said that he thought Y simply did not want to upset anyone.
The Mother’s questions to the Father were very brief and were as follows.
To the first, the Father said that he could recall only one conversation that he has ever had with Mr Powell. In the light of this answer, the Mother asked him how he could therefore be so anxious being around Mr Powell. The Father’s response was inconclusive and highly generalised.
Secondly, the Father confirmed that in his Orders sought he is only proposing Facetime with the Mother and then counselling. In the Father’s view, he said that it is in the best interest of the children if they do not see as much of their Mother as they do now. Respectfully, this was an astonishing comment which was both hurtful and showed a remarkable lack of insight on the Father’s part. Moreover, the basis for such a comment was not laid out at all. The Mother suggested that removing the children from her primary care would likely damage their relationship with her. There was no discernible comment from the Father in response. The Mother further put to the Father that none of the allegations against Mr Powell have been established. Again, there was no response from the Father. He did acknowledge that it would be a significant change to the children’s care arrangements if they moved from the Mother’s full-time care to the Father’s full-time care. The Father said, with little or no qualification or evidence that he thinks it is in the best interest of the children for the change in residence to occur as he proposes. This was rather like argument mainly by assertion.
When asked why such a significant change in the children’s primary residence was best for them, the Father said that noting the matter’s canvassed in the Family Report and in the light of 6 years of allegations against Mr Powell, in his view it was “beyond time that things change for the better”.
Again, the Mother noted that none of the allegations have been established and in fact have been proven false. The Father said that in his view the allegations still place the children in a “high risk protection area”. The Father acknowledged that a change in the primary residence of the children (and change in schools) will mean that the children will be somewhat disrupted, but he was sure, if not confident, that they would settle in quickly with the changes that he sought. The Father confirmed that he will make the situation work whatever the Court’s Orders ultimately are.
The Mother’s evidence
The Mother’s cross-examination was rather more extensive than was the Father’s, obviously because, as earlier noted, she was not legally represented.
By reference to page 100 of the Father’s Tender Bundle, which related to a statement by Ms K, the Mother said that she was present when the incident referred to in this document happened. She said that she was angry with Y because his bike had been left against her ute, which subsequently had been scratched by it. She confirmed that she was taking the children to school this day. She said the contest with Y on this occasion took place at approximately 8:00am. When she had “the discussion” with Y, Mr Powell was in the bedroom getting ready for work (he works for a removalist company in City G). The Mother said that she was not yelling at Y at all, and that she had only raised her voice; she firmly denied swearing at Y.
The Mother confirmed that Mr Powell was also angry with Y for leaving his bike out and obviously, for scratching the Mother’s car. He told Y that he should have put his bike away. The discussion between Mr Powell and Y took place in the kitchen, with X being in her bedroom hearing it. The Mother said that Y was not crying during these discussions.
X also reported another incident that allegedly involved Y having a mark on his neck. The Mother confirmed that she never saw any mark on Y’s neck, but accepted that she was not in the room during the discussion between Y and X. In any event, the Mother denied that it was possible for Y to have such a mark on his neck and she would not see it because (as noted above) the Mother said that she took the children to school and she would have seen it as a matter of course. The Mother said that she doubted that the conversation between X and Y could have taken place with Mr Powell present regarding the alleged mark on Y’s neck because Mr Powell had already gone to work by this stage.
The Mother was asked why Mr Powell was not a witness for her in these proceedings. She said that she thought that he was (noting again that until relatively recently before the trial she had been legally represented by the Legal Aid office based in City G). There was also discussion regarding what the Mother did or did not know in relation to the preparation of Affidavits and also in relation to alleged inconsistencies in the Mother’s Affidavit evidence and the reported comments of X. I do not need to traverse these further.
X alleged at different times that the Mother left her alone at home to care for her brothers (as reported to Dr J). The Mother said that this did not happen. Amongst other things because she works at the service station in the cafeteria/kitchen 2 days per week, although when she spoke to Dr J she was working there 5/6 days per week. Again according to X, as recorded by Dr J, X said that the Mother does not get home until 7:00pm. The Mother denied this. Similarly, X’s claim that she has to cook meals for her brothers and look after them, and likewise that the Mother sometimes brings home food from her job, the Mother denied this. X’s almost blanket statements regarding, for example, she cooking dinner and the Mother regularly bringing home food, perhaps lacked a likely reality by which, from time to time, the Mother may have brought some bits and pieces of food home from the café at the service station but not every night for dinner and/or leaving everything to the worried and busy hands (on her account) of X.
X’s further contention that the Mother drove Mr Powell to work and that X stayed home to get the children ready for school was also forcibly denied by the Mother.
As with almost all of the statements attributed to X in one report or another, in the absence of independent verification of it (a) I would invariably have significant doubts about the accuracy and/or veracity of any such statement, and (b) in any contest between statements by X and the evidence of her Mother, I would invariably accept the very candid evidence of the Mother.
By reference to page 101 of the Father’s Tender Bundle, there was again a detailed and somewhat prolonged discussion with the Mother regarding allegations of bikes scratching cars and alleged assaults by Mr Powell upon Y, including Y being choked by him. To virtually all of these claims, the Mother said that she understands that in relation to many of them this is what Y thinks happened but it is not what actually happened at all. All of this said, the Mother confirmed that on one somewhat recent occasion, Mr Powell kicked Y in the bottom. She confirmed that this happened on the date mentioned, that it happened before X entered the kitchen, and that the incident was not reported to the police. The Mother said that in her view, in the circumstances of the incident, it was appropriate for Mr Powell to chastise Y as he did. However unacceptable the kicking of any person is, this was another unvarnished piece of the Mother’s evidence against her own interest. Indeed her candour remained throughout her testimony at all times. She said on other occasions, few though they were/are, if she takes Mr Powell to work and the children are left at home it is simply so that they walk to the bus stop.
By reference to page 104 of the Tender Bundle, which relates to an incident on 15th October 2021, the Mother confirmed that she had not read this statement previously but that the incident referred to did not occur as recorded in it. The Mother confirmed that while she works as a chef 2 days per week at the service station and that she has recently started a cleaning job for another 2 days per week, she is not at paid employment during the time of the evening meal. For example, she said that a regular shift for her on Saturdays is from 7:00am to 2:00pm.
In the light of the number of instances where X has said one thing and the Mother has said the complete opposite, the Court asked the Mother whether or not X had a tendency to tell one parent what they wanted to hear and the other parent something different. I asked further whether or not she was creative in her narratives and/or honest. The Mother said that X likes to make her parents happy and that she says things to make the other parent happy. The Mother confirmed further that X does make up stories, that she tells “white lies” and that she also tells “big lies”.
The Mother accepted that there have been multiple allegations made by the Father and likewise a range of allegations made by the children. This includes as late as 15th October 2021 that Mr Powell had his hands around Y’s throat. When asked why Y would make up such statements about when he is in the Mother’s household, the Mother simply said that Y likes to say things to make people happy but that it is very hard to believe these stories when she herself was present in the room at the time the incident was said to take place – and it did not happen.
The Mother went so far as to say that a number of the matters raised by Y, more particularly of Mr Powell attempting to choke him, were all made up to please the Father. Returning briefly to the scratched ute of the Mother, she said that she had asked Y multiple times to move his bike but he had simply and consistently not done so. By inference, both in her case, and that of Mr Powell, the context leading to their individual levels of frustration at the continued disobedience of Y ultimately led to Mr Powell “kicking Y up the bum”.
Various other allegations were made and either denied and or explained by the Mother involving the children, for example, X being on crutches at one stage and that Mr Powell allegedly yelled at her to feed the dogs and that if she didn’t he would “kick her down the stairs”. As with many other allegations, the Mother said that this did not happen. Similarly, allegations of smacking the children in 2016, “flicking” the children during dinner, going into the bathroom while X was having a shower, according to the Mother never happened. In a slightly similar vein, the Mother denied the further (or perhaps simply revised allegation) that Mr Powell requires X to shower with the door open which, if true, makes her feel uncomfortable.
The Mother confirmed that in her view X was at an age where she will decide where she wants to live. She also largely agreed with the proposition that the real issue in relation to X related less to where she lived but simply the logistics relating to the residences of both her parents – her Mother in City G, and her Father in or near Town T. The distance between these two centres is around a 2 ½ hour drive, which covers the approximately 260km between the two centres.
I request two things of the ICL: (a) that she, and not the parents, explain the Orders to the children, and (b) that she remain in the matter for the next 9 months so that on two occasions, perhaps at 4 monthly intervals, she meet with the children to see how they are going. If, for example, Y is struggling, it may be that the parents might agree that he return to live primarily with the Mother and spend each alternate weekend with the Father. By the ICL staying in the proceeding, it might just give Y a degree of assurance that not all ships have sailed and, unlike various explorers throughout history who burned their boats to motivate the remaining crew, he is not marooned and can return to his Mother’s residence.
Two final observations.
First, in his evidence the Father said that if he could not formally relocate to the Canberra region (which occurrence arises because of his partner’s move to this region for work purposes), he said that he would otherwise make it work, meaning that he would likely stay in the City G region. As somewhat altruistic for the sake of the children as this might seem, again in no hypercritical way, it struck me as a tad odd for the simple reason that, if you claim to be committed to your partner/spouse, this would usually mean a shared life together. It would not usually mean some sort of bifurcated couple with dual residences and occasional but regular time together. Just a comment, particularly regarding the seemingly long-suffering Ms K.
Secondly, given the historical evidence canvassed in these reasons, highly contentious that it is including the determination by Ms E that (a) X had lied to her about certain events, and (b) the code then used by the Father with X, which suggests a significant level of both manipulation and deception on his part (accepting that such matters were not formally tested), it could ultimately lead to X forming a view that deception and lies can secure what you think you want. I make no formal findings in this regard. However, if such a conclusion was even partly true, it would not only make a mockery of these relentless proceedings, it would also effectively be a form of moral or ethical corruption of the foundations of the life or lives of a number of people involved in them, even (to some degree) including one or both children. Part of this “moral corruption” involves the Father condoning and encouraging X to lie. This was and is reprehensible.
Finally, having regard to the geographical distance between the residences of the parents noted earlier in these reasons, the practical reality of distance and travel time readily satisfies the criteria set out in s.65DAA(5).
I certify that the preceding one hundred and fifty-eight (158) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville. Associate:
Dated: 18 February 2022
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