AA and A
[2005] FCWA 33
•18 MARCH 2005
JURISDICTION:
FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975 and
FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: AA and A [2005] FCWA 33
CORAM: THACKRAY J
HEARD: 1, 2, 3, 4, 5, 9 & 10 NOVEMBER & 3
DECEMBER 2004, 8 & 16 MARCH 2005
DELIVERED: 18 MARCH 2005
FILE NO/S: PT 4814 of 1999
PT 5820 of 2003
BETWEEN: PAA
First Applicant/Mother
AND RA
First Respondent/Father
RF
Second Applicant/Father
AS
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Second Respondent/Father
Catchwords:
Residence - five children by four fathers - drug abuse - parental conflict - alleged child abuse
Legislation:
Family Law Act 1975, s 68F(2)
Family Court Act 1997, s 166(2)
Category: Not Reportable
Representation:
Counsel:
First Applicant: Ms H Athanasiou
First Respondent: Mr R Klimek
Second Applicant: Self Represented Litigant
Second Respondent: Ms S Crisp
Child Representative: Mr E Martino
Solicitors:
First Applicant: Ferrier Athanasiou & Kakulas First Respondent: Bowen Buchbinder & Vilensky Second Applicant:
Second Respondent: Sic ard Crisp & Bannerman
Child Representative: Paterson & Dowding
Case(s) referred to in judgment(s):
Nil
1PAA has five children by four different fathers. I am required to determine disagreements involving the mother and three of the fathers concerning where the three youngest children will live.
2I reserved my decision after an eight day trial in November and December 2004. Judgment has been delayed because of applications to reopen. I refused to allow the parties to reopen, but did permit the Child Representative to produce a recent medical report dealing with some concerns raised about one of the children.
THE CHILDREN
3The family structure is complex. I will begin by introducing the children and identifying the issues associated with each of them.
HA (14) & T A (13)
4The mother’s two oldest children, HA and TA, have lived with their father, GA, for many years. They see PAA, their mother, each alternate weekend and during school holidays. Everyone agrees this arrangement will continue. Orders concerning the other children will need to take account of the mother’s contact schedule with HA and TA.
JHA (7)
5PAA’s next child, JHA, has contact every weekend with his father, RA. PAA wants RA’s contact with JHA to be reduced to each alternate weekend and parts of school holidays. RA is resigned to the fact his contact will be cut back if he is unsuccessful in his application for residence. If he obtains residence, he wants PAA to have supervised contact until she has addressed what he regards as her mental health problems.
MDF (4)
6Three different people want residence of PAA’s next child, MDF. PAA wants MDF to remain living with her. PAA’s father, RA, believes MDF would be better off living with him and having the same limited contact with PAA as he proposes for JHA. RA
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presently has contact with MDF for several hours each alternate
Sunday.
7MDF’s biological father, RF, strongly opposes RA’s application. He does not want RA to have any further contact with his daughter. RF believes MDF should continue to live with PAA, but if the Court were to contemplate removing her, he wants MDF to live with him. However, RF candidly admits he does not have suitable arrangements for MDF and, if he was granted residence, he would like to give her straight back to PAA.
8RF has a very flexible contact arrangement with MDF. He sees her frequently by dropping in at PAA’s home. RF has also started having overnight contact with MDF at his own home.
BWS (1½)
9The youngest child, BWS, born June 2003, also lives with PAA. His father, AS, wants BWS to live with him. AS considers PAA should only see BWS for short, supervised visits. AS presently has two contact visits per week with BWS, each of four hours duration. PAA is agreeable to a significant extension of AS’s contact (including overnight), but believes BWS should continue to live with her.
THE ADULTS
10 There are many adults who have been involved in the children’s lives, most of whom gave evidence. Rather than dealing with the relevant history in chronological order, I propose setting out my findings by reference to the parties and some of their witnesses.
PAA (35)
11 PAA had a troubled childhood, her parents separated when she was three. She left home at age 14, after conflict with her then stepfather. She also began using cannabis when she was 14.
12 PAA has been married twice, and was involved in at least two other serious relationships. She had her first baby before she turned 20, and four more over the next 13 years. PAA has been on antidepressant medication for many years. She says she is not in a relationship and does not plan to have any more relationships until the children are off her hands. This will be a major change for PAA, since she has lurched from one relationship to another since she was a teenager.
13 PAA presently lives in the suburbs with her mother and her mother’s current husband. She proposes remaining with them, but ideally would like to live independently. She has two sisters, but does not get on with one of them.
14 PAA does not work outside the home. She did one shift at a brothel when she was living with AS, the last man with whom she had a serious relationship. She says she only started the work because AS was treating her like a whore and she thought she might as well get paid for being one. AS was furious and PAA decided not to continue with prostitution. On her way back to the brothel to collect her possessions, PAA gave herself a beating, resulting in facial bruising. She spread a story that AS had beaten her up. She also later worked part-time for a few months as an exotic dancer.
15 PAA’s evidence was an interesting mixture of fact and fiction.
I consider her oral testimony was more reliable than her affidavit evidence, particularly the evidence she gave in affidavits sworn in
interim proceedings. I also consider she was reasonably frank in her discussions with the Court Expert, Mr Adam Peaty.
16 Some of the information PAA gave in her affidavit evidence was quite misleading. For example, in paragraph 16 of her first affidavit, sworn 26 September 2003, she led the Court to believe she only smoked drugs after the children were in bed. This was untrue. In paragraph 142 of her trial affidavit, PAA denied ever shoplifting, notwithstanding she had already told the Court Expert she had been involved in shoplifting. She readily admitted in cross-examination she had shoplifted. She also had a tendency to dramatise events, for example, those described in paragraph 52 of RA’s affidavit concerning one of their visits to the Family Court.
17 However, PAA made many concessions against her own interest when she was being cross-examined. She admitted she was an impulsive person, quick-tempered and impatient. She was also prepared to admit past mistakes, for example, using fly spRF to get rid of JHA’s nits.
18 PAA also showed some insight. She readily admitted she has made a lot of bad choices in her life. She acknowledged she needed a “tap on my shoulder to wake me up”. She said she now realises she is not invincible and needs to “act her age”. She also said she is trying to see things differently and trying to have good relations with the people in her life.
19 Although I accept there was an element of PAA telling the Court what she thought would help her case, I also accept she has a genuine desire to do things differently in the future. She has already made some major changes in the way she conducts her life and cares for her children. She has finally recognised she runs a risk of “losing” her youngest children if she reverts to her former lifestyle.
GA
20 GA is the father of HA and TA. He met PAA in 1988 and they commenced living together. They married after HA was born in
1990. The marriage broke down in December 1994. In the following year, P and the children left the country town, where they had been living, and came back to Perth.
21 GA maintained very regular contact with his children, notwithstanding the distance they lived apart. HA missed his father and wanted to live with him. PAA led HA to believe he would be able to do so if his father remarried. PAA says she never expected this would occur, but GA did remarry in 1999. PAA says it was agreed the children would then live with their father.
22 In fact, it seems PAA was not coping well at the time the children left her care. She placed pressure on GA to take them. He did so only after PAA made a remark suggesting she might gas herself and the children. I find PAA is given to making attention seeking statements and never contemplated harming the children. GA was justified in saying he regarded her remarks as a misdirected plea for help.
23 GA and PAA have enjoyed a reasonably amicable relationship since the children went to live with their father. However, GA has made it very clear that once the children came to him, they would not be returning to PAA. They have been able to negotiate a good contact arrangement and have never resorted to court proceedings. HA and TA enjoy their regular visits with PAA and have a positive view of her.
24 RA (JHA’s father) contacted GA at the time RA was contemplating taking JHA into his care. He told GA about a variety of complaints that had been conveyed to him by friends concerning PAA’s parenting. GA agreed to support RA in his application for residence and swore an affidavit in which he was critical of PAA. He had nothing critical to say of RA in the affidavit, which was prepared by RA’s solicitors, although there were aspects of the parenting of both RA and PAA that concerned
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him. For example, he was unimpressed, during the time they were living together, to find both RA and PAA regularly smoking from a bong whilst the children were present.
25 Only a few months after signing his affidavit, GA had changed his mind about what would be in the children’s best interests. He has ever since supported PAA’s efforts to retain all of the children. I consider his change of heart was the result of two things.
26 First, he was very impressed by the changes he observed in PAA after she went to live with her mother at around the time these proceedings commenced in 2003. He thought that she was much more “level-headed” and “bright-eyed and bushy-tailed”. He attributed this change to PAA kicking her drug habit. He found her to be more approachable, pleasant and less prone to be cross with the children.
27 Secondly, GA had come to know RA and AS a little better.
He did not form a good impression of them, or their motives in
pursuing their applications for residence. He decided neither of them was “in it for the children”. In particular, he felt bullied by RA’s efforts to wheedle his way into GA’s new family. This arose from RA’s desire to demonstrate to the Court his ability to facilitate contact between PAA and HA and TA. GA is strongly opposed to PAA visiting his home to further his association with HA and TA. He believes visits by PAA would be disruptive to his blended family. However, he is keen for JHA to be able to spend more time with his older half siblings at PAA’s place.
28 I found GA to be a fairly reliable witness. His reasons for changing his mind about where the children should live were logical and consistent with the evidence. He has an ex-partner’s view of some matters to do with PAA, but overall I consider he attempted to give an honest appraisal of her strengths and weaknesses. He has known PAA for a long time and was therefore well placed to assist the Court by describing the changes he has observed in her demeanour and behaviour.
RA (40)
29 RA also had a troubled childhood. He comes from a family of four. Like PAA, his parents separated when he was young. RA was initially cared for by his father, but then went into the care of his mother. He recalls his father being occasionally violent and he recalls being scared as a child because of the conflict between his parents.
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30 RA told the Court Expert he was “mixed up” as a teenager and talked about suicide. He became addicted to morphine, but claims to have overcome the addiction. He was a regular user of cannabis from age 15. He says he was using heavily when JHA was born. He and PAA used cannabis more or less daily, commonly in the presence of the children.
31 RA had a child, B (11), before he commenced his relationship with PAA. RA never lived with B’s mother. B has contact with RA every alternate weekend. RA expects that B will come to live with him in the next few years.
32 RA and PAA commenced a relationship in about July 1995, after PAA broke up with GA. Although they had only just got together, they were married in November 1995. They separated in September 1998, when JHA was only a few weeks old. PAA was prescribed antidepressants at around this time. RA has not re- partnered since the failure of his marriage with PAA and now lives alone – although he previously shared a home with another man.¹
33 After their marriage broke down, PAA and RA lived in the same house on two occasions. The first was for about six weeks in
1999 and the second was for a few months in 2002. In between those times, RA twice went to the USA. He was away on each occasion for six months and had no contact with JHA.
34 RA endeavours to blame PAA for his leaving the country, claiming she had prevented him from having contact with JHA. PAA did go to stay with friends just outside Perth at around the time RA first went away. However, there is no evidence of RA taking any concrete steps to try to have contact with his son. I think it is more likely that RA’s travels to the USA were the result of him being “confused and mixed up”, as he told the Court Expert. I suspect this had a lot to do with his disappointment that PAA had not been prepared to resume their previous relationship.
35 Prior to his departure to the USA, RA wrote an unpleasant letter to PAA. After a litany of complaints he said:-
“You were very obviously prepared to have a child without me, so now you will have to. It breaks my heart to have to say this…I am saving myself and getting help now while I still can so that when he really needs me I will be strong enough to be there for him”.
36 During the time PAA stayed with him in 2002, RA cared for
JHA and MDF for two weeks whilst PAA went on a cruise. Before
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her departure he gave her a very nic e card, in which he said she was “a beautiful woman, a loving mother and a wonderful person”.
¹In preparing these Reasons I have not had regard to information contained in affidavits sworn in support of the applications to reopen, which indicate that within days of the trial concluding, RA had formed a new relationship.
37 Apart from comparatively short periods (mainly it seems in early 2000 immediately before he went to the USA), RA has exercised regular contact with JHA. However, he did not seek to have contact with MDF until these proceedings were commenced. This was so, even though MDF’s biological father was not involved in her life at the time, and notwithstanding that RA and MDF had a good relationship during the time they lived in the same resid ence. MDF even used to call RA, “Dad”.
38 There was no issue about where JHA (and MDF) would live until just before these proceedings started in 2003. However, RA was prompted to threaten PAA with drastic action after receiving information from mutual friends in the middle of 2003 concerning the way PAA was treating the children. Matters came to a head in September 2003, when RA saw PAA with a black eye. He decided to keep JHA at the end of a contact visit.
39 RA ended up having JHA in his care for more than month, until the Court awarded interim residence to PAA. During this time, JHA did not see PAA, MDF or BWS at all. RA promised PAA’s mother he would drop in with JHA to see her, but this did not eventuate either. However, he did take JHA to visit HA and TA twice.
40 JHA was only able to speak with PAA on the telephone once in this entire period of just over a month. RA says he did not allow further telephone calls because PAA was abusive during the first call. The abuse apparently consis ted of PAA yelling at JHA, instructing him to tell his father to bring him home.
41 RA also withdrew JHA from Cloverdale Primary School, where JHA was a popular member of his class. He missed what would have been his last week at the school, and was unable to say goodbye to his pre-primary classmates. Although PAA was very unhappy about JHA being retained, she gave JHA’s school clothing to RA so he would be able to attend school during that last week. RA claims this was just a strategy to get the boy back to school so PAA could regain possession of him.
42 RA was unemployed at the time of trial. He seems to be a proficient motorcycle mechanic and has worked on a casual basis for a number of employers. However, he does not hold down a regular job. The most he worked in one stretch in 2004 was about
10 days. He did not deny PAA’s claim he had been sacked from three different jobs in the fairly short time they were together.
43 Dr Nguyen, a psychiatrist who had once assessed PAA, was asked about the effects of long-term consumption of cannabis. He said many long-term cannabis users are “a-motivational”, by which I understood him to mean that they do not possess much “get up and go”. This is certainly the impression RA gave during the many days he was in Court. He spent most of the time staring vacantly into space, only occasionally exchanging a whisper or snigger with AS Stephenson, who was much more animated.
44 RA plans to support JHA and MDF by running a motorcycle repair business from home. He says he will get the business going as soon as funds permit.
Although the plan was developed some time ago, so far RA has been unable to afford the cost of registering the business name, although he has had some business cards printed. Notwithstanding his self confessed “extremely erratic” work history last year, RA was twice unable to attend for random drug testing because of pressure of work.
45 Although I accept much of RA’s evidence was truthful, I did not believe him on many matters. An example of the unreliability of his testimony was his claim in paragraph 8 of his affidavit, sworn 22 September 2003, that RF supported his claim for interim residence. I am satisfied RA knew full well by the time he swore his affidavit that this was not the case. RF had simply told RA to do what he thought was “best”. RA admitted this was the case in his trial affidavit.
46 RA claimed in his statement of financial circumstances that he was paying child support of $57 per week, when he has never paid anything like that amount. In fact, his record of paying child support is woeful.
47 RA also claimed in paragraph 76 of his trial affidavit that he had clothing for the children at his house. However, he did not even have a pair of knickers for MDF on the day she ended up coming home dressed in JHA’s clothes.
48 In his affidavit of 22 September 2003, RA also said he had exercised contact with JHA almost every alternate weekend since he was born. He failed to mention that he had gone off to the USA on two different occasions for six months, and had no contact whatever with JHA. This was highly relevant information in an interim application seeking to overturn a long standing residence arrangement.
49 In the same affidavit, RA made much of PAA’s use of marijuana. Remarkably, he failed to mention his own long-term extensive use of the same substance. His explanation was that drugs were a problem for PAA, but they were not a problem for him. He also complained about PAA using dope while she was pregnant, but failed to mention he was the person supplying it.
50 In a later affidavit, in which he did acknowledge his drug use, RA claimed he was only a “recreational” user, whereas under cross-examination he admitted there were times when he had been a heavy user. RA also gave clear evidence that he last smoked marijuana on the night before an injunction was granted on 16
October 2003 limiting the parties’ drug use. However, he returned
a positive result for cannabis in a test performed in December
2003.
51 There were many other aspects of RA’s evidence I found unconvincing. Overall, the impression I gained was that he was very good at throwing mud and very loath to make any admissions about his own poor conduct and parenting. He showed almost no insight. He did not give me any confidence he intended to make the effort needed to ensure he makes changes to the way he has functioned in the past.
52 RA’s presentation in the witness box did not assist his cause.
He came across as sarcastic, unpleasant and, on occasions,
aggressive. His approach to looking for ways to best promote the children’s best interests was typified in one answer when he was asked how a certain contact arrangement could work. He said PAA should have thought about that before she had another baby. His attitude was that everything would work out alright so long as “the truth came out” and the Court determined who were the “liars” and who was “trustworthy”.
53 Having said mainly negative things about RA, I nevertheless consider he has many good qualities. He has treated PAA much more respectfully and politely than AS. He has demonstrated an ability to compromise. For some time after their separation, he and
PAA were able to maintain a reasonably pleasant and amicable working arrangement, which is a credit to both of them. He also seems a fairly gentle person. I am satisfied he wants the best for the children and is to be admired for the way he has continued to have contact with his son and MDF.
AS (40)
54 BWS’s father,AS, claims to have had an uneventful childhood. He has no siblings and lives with his mother, who is a widow. There was no evidence of him ever having any other significant relationship, apart from the short, volatile one he had with PAA.² Like PAA and RA, he has been a regular consumer of cannabis from his teenage years, although it seems likely his consumption was somewhat less than theirs.
55 AS has known PAA for many years, as he was a longstanding friend of RA. He was living across the road when PAA was staying with RA for a short period in 2002. AS made a beeline for her door when PAA sent out a text message to some male associates, offering to have sex for money. This caused a rift in his friendship with RA.
56 It is difficult to ascertain the real nature of the relationship between AS and PAA. AS has the impression they were cohabiting, whereas PAA saw him more as a friend who squatted at her place and would not leave. In any event, they spent a lot of time together during 2002/03. The last place they lived together was PAA’s rental home in Cloverdale, which she occupied before she moved to live with her mother.
57 PAA says she became aware of what she regards as AS’s violent and threatening personality at around the time she fell pregnant with BWS. They were living apart for some months before BWS’s birth, but after BWS was born, AS came back “on the scene”. PAA says he wanted to resume their relationship, but she was resistant. However, there was a reapprochement when RA kept JHA in his care in August 2003. AS actively assisted PAA in her legal efforts to recover JHA. PAA asked AS to marry her at around this time. She also had his name put on BWS’s birth certificate.
58 PAA says she moved back to live with her mother in October
2003, because she was afraid of AS. PAA nevertheless allowed
him to have contact with BWS. After three visits, he failed to return the baby. AS admitted that when he took BWS, he intended to keep him “for good”. PAA promptly obtained a recovery order. AS then obtained an order for contact with BWS, and has exercised contact regularly ever since. He has been most dissatisfied with the limited contact available, and considers the Court should have awarded him interim residence.
²Once again, I have not taken into account evidence received in the unsuccessful application to reopen, which indicates that AS commenced a new relationship within a matter of days of the trial concluding.
59 AS has had difficulty in letting go of his relationship with PAA. As late as January 2004, he was making comments about wanting to resume their association. AS admitted during the trial he “still had feelings for PAA”. In March 2004, PAA obtained an interim Violence Restraining Order against him. AS has been charged with various breaches of the order. He was arrested and kept in custody for four days in May 2004. The charges had not been heard at the time of trial of these proceedings, however, the hearing relating to the confirmation of the interim Violence Restraining Order was looming.
60 In about the middle of 2004, AS and PAA started using Daisy House as a neutral venue for the handover of BWS for contact visits. Prior to that time they had been using a local fast food restaurant.
61 AS and RA have resumed their former friendship and have been actively co-operating in preparing their cases against PAA. They spend a lot of time together during contact periods, and support each other at Court. AS has even come with RA on occasions when RA has been collecting JHA and MDF for their contact visits.
62 I found AS to be a most unreliable witness. He is consumed by resentment towards PAA and, in my view, sees these proceedings as an opportunity to settle old scores. Like RA, he was adept at making allegations against PAA, but could never concede that he had ever been the cause of any problems, or that he could improve in any way.
63 Even in the face of incontrovertible evidence to the contrary, AS avowed the accuracy of his statement in paragraph 14 of his
affidavit, sworn 20 October 2003, “that HA & TA have chosen not to have contact with PAA and as a consequence they hardly see her”. This was a very significant claim in an affidavit in interim proceedings. However, it flew in face of the fact there has been a longstanding, regular contact arrangement between PAA and her oldest children.
64 AS’s claim in paragraph 18 of the same affidavit that “numerous people” had spoken to him about reporting PAA to the Department of Community Development was also a lie, even on his own evidence.
65 Like RA, AS made much of PAA’s use of marijuana, but failed to mention his own – even in his trial affidavit. His excuse was that he hadn’t been asked about his drug use. When asked to explain why he had not mentioned his drug taking, he responded, “Why should I – I don’t have the problem with jobs”. It also seemed to make a difference to him that PAA smoked marijuana “daily”, whereas he only smoked “nightly” when they were together.
66 AS also demonstrated in Court that even his short-term memory is unreliable. For example, he thought Ms EV had told the Court she had reported PAA to DCD while PAA was living with her, when she had given no such evidence.
67 Although AS made allegations early in the proceedings about PAA rubbing, or threatening to rub, MDF’s face in her own urine, it was only later in the proceedings he mentioned she had also rubbed MDF’s nose in faeces. I was unable to determine whether that allegation was true, but I certainly did not accept AS’s explanation that he did not make the claim earlier because he wanted to leave PAA with “some dignity”. I have no doubt one of his primary motivations was to strip PAA of any dignity she may have had.
68 I particularly reject AS’s evidence about the language he has used towards PAA at handover and on other occasions. I had no hesitation in preferring her evidence on this point. I find he repeatedly called PAA names such as “cunt” and “slut”, and said things such as, “your mate RF has got AIDS”. I also found most unconvincing AS’s denial of sending PAA foul SMS messages, as was his suggestion that PAA may have sent herself the messages.
69 AS did admit sending one text message to PAA saying “Thanks for telling me about your genital warts tc”. He admitted the initials “tc” meant “tunnel cunt”. He justified his use of the
initials on the basis that one of PAA’s friends had given her that nickname and that it was “a lot better than using the actual words”.
70 AS seems to have difficulty getting on with authority figures – especially women. The assessment interview at Daisy House had to be terminated because of his insistence the supervisors should carry out a duty they did not wish to perform. He was “not impressed with them”. He considers DCD only listens to complaints from women, not men. He now claims he only initially helped PAA in seeking to have RA return JHA in 2003 because he was concerned about BWS’s welfare and because “he knew what the Family Court is like with fathers”. He sees the actio ns of anybody who stands in his way as denying him his “rights” as a father.
71 Unlike RA, I found few redeeming features about AS. I will give him the benefit of the doubt and accept he is keen to be a part of his son’s life for reasons other than his desire to exercise his “rights” as a father. He has exercised contact regularly and has developed some parenting skills. He also has a well developed work ethic.
RF (42)
72 RF, MDF’s father, also comes from an unhappy home, although his parents stayed together until he was 18. He has three siblings. He was sexually abused as a teenager. RF has been a heavy drinker, but claims to have reduced his intake significantly. He also used to consume marijuana, but says he stopped in the early 1990s.
73 RF has convictions for drink driving (2), possession of cannabis (2) and assault (1). He has ADHD, for which he takes medication. He is separated from a woman he married in 2001, allegedly to assist her to gain residency in Australia. MDF is his only child.
74 RF and PAA first met in 1985, soon after she had run away from home. RF was 5 years older, but they had a brief relationship. They rekindled their friendship after PAA split up from RA. They did not live together. PAA and JHA did move to the north west, where RF lived (although RF was overseas at the time). She remained for only a few weeks before returning to Perth to take up residence with RA briefly again. RF and PAA terminated their relationship around the time PAA found she was pregnant with MDF.
75 RF did not attempt to have any contact with MDF for just over a year after her birth. He then saw her only very occasionally and “spoke” to her on the telephone. He was not living in the metropolitan area at the time.
76 RF began to take a much more active interest in MDF at around the same time these proceedings commenced. Since that time he has been seeing her regularly. He commenced taking MDF away on contact visits in the last part of 2003, and started having overnight contact in about March/April 2004. The visits have been progressing very well.
77 RF has resumed a friendly but, save for one isolated occasion, not intimate relationship with PAA. He has a casual relationship with another woman, but has no plans to introduce her to MDF.
78 PAA once wrote to the Registry of Births, Deaths and Marriages, making claims that RF had been violent towards her. PAA admitted in cross-examination the contents of the letter were a lie. She claims she told the Registry “what they wanted to hear”, so she could ensure RF’s name was put on MDF’s birth certificate.
79 RF acknowledged to the Court Expert that his parenting skills were limited, and that his home was not oriented towards children. However, his place is satisfactory for short-term visits and he is comfortable around young children. If RF obtained permanent residence of MDF, he would ask his mother and sister for help. However, at the time RF saw the Court Expert in early 2004, MDF had not been introduced to either RF’s mother or sister.
80 RF is in full-time employment and pays some child support, although he admits he has not completely kept up to the terms of a private child support agreement he has with PAA. He has been offered work in the north west, where he previously lived, but has turned it down because he wishes to have regular contact with MDF.
81 I had a good opportunity to observe RF during the proceedings, not only because the trial was lengthy, but also because he was the only self represented litigant. I was favourably impressed by him. He seemed a pleasant, decent and honest individual. He conducted himself skilfully and with quiet dignity during the entire trial. He seemed focused on the best interests of the children, but naturally in particular on MDF. He has attended a positive parenting program and been involved in long-term counselling with Lifeline, as recommended by the Court Expert.
82 Although RF was entirely absent from his daughter’s life for more than a year, I gained the impression he has a genuine desire to make amends and to be consistently available to MDF in the future. However, it seems RF has had a very serious drinking problem in the past. He will need to be vigilant with alcohol if he wants to ensure an ongoing quality relationship with MDF.
MM (61)
83 PAA’s mother, MM, has 12 grandchildren. Her first marriage, to an alcoholic husband, ended in divorce, when PAA was very young. She then married the man with whom she was living when PAA left home. She married her third husband a few years ago.
84 MM has had a diverse and interesting career. She struck me as an intelligent, articulate, sensible person, with a tough edge. She told the Court Expert she and her sister had been sexually abused by her father, who was sent to prison as a result. She holds her opinions fairly firmly, but is not judgmental. She takes antidepressants, but was functioning well when she met with the Court Expert, and showed no sign of depression in Court. She remained in Court with her husband for almost the entire trial, supporting PAA.
85 PAA claims her mother gave her a strict upbringing and used a wooden spoon to discipline her. MM confirmed she used the wooden spoon quite often. I felt MM’s responses to questions about why PAA left home at such an early age showed some lack of insight. She implied that running away was just the sort of thing a 14-year-old does – they “always live in an unbearable situation”. PAA says her stepfather kicked her out and her mother stood by and “let it happen”. PAA could not forgive her mother at the time, but they have since made up their differences after a long estrangement.
86 Whatever may have been the position during PAA’s earlier years (and I accept PAA is not a reliable historian), MM has certainly been very supportive of her daughter in recent times. She has provided accommodation for PAA and her children in a variety of ways since 1999. For example, in 2000 she bought the unit next door to her own home and allowed PAA to rent it. She later allowed PAA and the children to move into her place when she was working away. She has again allowed PAA and the children to live in her modest sized home since October 2003. This could not have been easy, especially as she was only fairly recently remarried.
87 In 1999, MM received a telephone call from Ms EV, with whom PAA had been living for a short time. Evelyn told her that she was concerned for PAA, and that PAA had been hitting JHA.
MM went to see PAA immediately, but did not find any physical evidence of harm to JHA.
88 I found MMto be a reliable and fair witness. She is certainly aware of some of PAA’s shortcomings and is anxious to help PAA improve her parenting methods. She has never used drugs and is resolute in her intention to ensure PAA does not revert to her previous habit. She has retained the respect of both GA and RF. Although she doesn’t have a high opinion of RA, it was he who contacted RA to let him know MDF’Srogress in hospital after MDF as injured during one of RA’s contact visits.
PM
89 PM has been married to PAA’s mother for a few years. He is known as “Grampy” to the children. He is retired and has two teenage children of his own, who he sees regularly.
90 PM impressed me as a quietly spoken, mature and sensible fellow, who does not take any “nonsense” from RA or AS. He has not used drugs since trying marijuana as a young man. He struck me as someone who would be a good influence on PAA and the children. He and his wife occasionally babysit the children, sometimes take them to school and attend school events with PAA. However, I have no doubt that he and MM play only a fairly minor supporting role in the care of the children and that primarily they are being cared for by PAA.
91 I had no hesitation in accepting PM’s evidence. He did not attempt to paint an overly rosy picture of PAA’s abilities as a mother, nor of the conditions in the home in which they are all living. He acknowledged he and PAA had their “moments” but none of these sounded any more than what might be expected of any family living in such close quarters.
JS(70)
92 AS’s mother, JS, had a very bad cold on the day she gave her evidence and this perhaps explained why she appeared somewhat “grumpy”. She said she goes to the gym every day. Nevertheless, even making allowance for her age and ill health on the day she came to Court, she did not appear to be very robust. Until these
proceedings commenced, JS had been planning to move into retirement home.
93 AS plans to live with his mother for at least a year if he obtains residence of BWS. He has lived with her for most of his adult life. JS has been involved in attending at contact handovers with AS on occasions and I believe she is a moderating influence.
94 AS says he would like to stay home with BWS for the first year if he obtains residence, so he could “get to know him”. He then proposes to return to work on at least a part time basis. AS’s evidence satisfied me he thinks child care is women’s work, and earning income is men’s work – “the way it has been for thousands of years”.
95 AS admitted his mother has been actively involved in BWS’s care to date even though he has him for only a few hours at a time. I have little doubt that if AS obtained residence of BWS, JS would bear the brunt of the burden of looking after him, even though AS told the Court Expert he would be the primary carer. JS herself said she intends to be significantly involved in BWS’s care in the future. She was raised by her grandmother from a very young age and I am sure would want to help in bringing up her own grandson. My assessment is that she would do her very best, but the job would ultimately become too much more her.
96 JS described her relationship with PAA as being “pretty good”, but AS had warned about getting too close to her. PAA accepted that JS is a trustworthy person. Although it was suggested JS might be able to assist in handovers at PAA’s home, she foresaw problems, including the fact she would be dependant upon AS for transport. She also thought there would be problems if handover were to happen at somewhere like McDonald’s, because of the poor relationship between PAA and AS. She held this opinion, even though earlier in her evidence she said the handovers she had observed at McDonald’s “went good”.
97 I found JS to be a fairly reliable witness, who naturally tended to see things from her son’s perspective.
Ms F
98 Ms F is the mother of Reece, who is a friend and classmate of JHA’s at his present school. She also knows AS, and through him met RA. RA described Ms F as an acquaintance, not a friend. However, I gained the impression this was somewhat of an understatement, notwithstanding RA snorted out loud and laughed
when it was suggested to him he was romantically involved with
Ms F. 3
3.I do not take account of the fact that in the unsuccessful application to reopen, RA and Ms F acknowledged that they are now in a relationship.
99 Ms F gave evidence of conversations she had with PAA before she realised PAA’s connection with AS and RA. Although PAA disputed Ms F’s recollection of their discussions, I was inclined to think it more likely that Ms F’s version was the more accurate. Otherwise, I found Ms F to be an extremely partisan witness. She was so obviously biased that I was not prepared to place any weight on the observations she made concerning the children’s presentation and interaction with PAA, and the comparisons she had drawn with their interaction with RA and AS. I was also not prepared to accept her description of PAA’s appearance on 16 March 2004, when she said PAA appeared “spacey” after consuming marijuana.
100 Ms F’s home was damaged in 2004, when she went away on holiday with her children. She suspects PAA was responsible. Understandably this belief would have coloured her evidence. However, it was an indication of her bias that she was unable to accept even the possibility that someone else may have been responsible for the damage. She insisted on ruling out her estranged husband as a suspect. This was so, notwithstanding she had taken out a Violence Restraining Order against him and accused him of sexually abusing his children, whom he now does not see.
101 I also found improbable Ms F’s claim that only three people knew she was going away during the holidays when her home was damaged – especially as she acknowledged she often went away during school holidays. Although there was evidence of confrontations between PAA and Ms F earlier in the year, there was no evidence of any ongoing conflict in the period leading up to her going away on the holiday.
102 Although I accept there is a possibility that PAA may have caused the damage to Ms F’s home, the evidence did not support a positive finding in relation to such a serious criminal act. Indeed, there was no evidence to link PAA with the damage, other than the fact she had a motive because of Ms F’s support of RA and AS.
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Mr B & Ms W
103 These two witnesses were important because it was their complaints which prompted RA to take JHA into his care in 2003.
104 Mr B and his de facto wife, Ms W, used to be close friends of both PAA and RA – and they remain good friends with RA. They often looked after the children for PAA. Both of them are long- time drug users, but consider their habit has had no adverse impact upon them, their work or their parenting abilities. Whilst they may not be the “Mr Bigs” of the Perth drug world, as portRFed by PAA in her affidavit, I am satisfied they have been heavily involved in selling and growing drugs.
105 I did not find Mr B to be a particularly trustworthy witness.
He scratched at his back and neck persistently at points in his cross-examination when he was giving evidence that sounded of dubious accuracy. When I drew this to his attention, he continued to scratch, but in a way that gave the strong impression he was trying to show it was just a habit, and not a sign that he was straying from the truth.
106 Mr B initially claimed not to know where PAA got most of her marijuana – when in fact it is clear he was the major supplier. I am also satisfied he understated the extent to which he has grown marijuana. I was also doubtful about his evidence that PAA had asked him where she could hire a hit man or gun. He certainly did not take it seriously enough to mention it in his affidavit, or report the matter to the police.
107 I was also unimpressed by Ms W as a witness. She lacked credibility when she attempted to take the moral high ground, whilst admitting she had assisted PAA to write a malicious fax forwarded to the workplace of a man with whom PAA had a brief relationship. Ms W said she thought the fax was going to be put in the bin, which is surprising, since she wrote it because she had the better handwriting. She also lacked credibility when complaining about PAA’s habit of using a bong in the presence of her children, when she did exactly the same thing, using much the same quantities of marijuana. I also placed little weight on Ms W’s concern that a throwaway remark by PAA could be interpreted as a threat to kill MDF.
108 Although I did not think Mr B and Ms were entirely reliable, I nevertheless believed them when they said they had seen (or in the case of Ms W, heard) PAA slap JHA on the face when she came to visit their home in August 2003. PAA denied this had
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occurred. JHA also told the Court Expert his mother had never slapped him on the face. I nevertheless preferred the evidence of B and W.
109 However, what is significant is that even Mr B acknowledged that this slap was the “one incident where [PAA] really whacked him”. Although there were other times Mr B recalled PAA hitting JHA, these were “on the bum or the back of the leg or something – not enough to want me to let JHA’s father know”. He conceded these incidents occurred when JHA had been naughty, except the occasion when he saw JHA hit on the face.
110 Ms W acknowledged that PAA’s disciplining of the children was not the major concern she had about PAA’s parenting. She admitted PAA generally only hit the children on the hand when she was disciplining them. Ms W was more concerned about PAA saying she had rubbed MDF’s face in her own urine.
111 Mr B and Ms W were critical of many elements of PAA’s care of the children, but this apparently had no impact on their very close friendship. They continued to spend a great deal of time in each other’s company. Mr B admitted that PAA was sometimes nice, loving to the children and gave them hugs. He also conceded the children were generally well looked after and were nice kids.
112 I nevertheless accept Mr B and Ms W saw PAA being bad tempered and yelling at the children – especially when she did not have any marijuana or was not taking her antidepressant medication. Mr B admitted PAA was a much nicer and more amiable person when she was getting her supply of marijuana – and the evidence suggests she had a supply most of the time.
113 I consider there is a strong possibility that PAA led her friends to believe she was tougher on the children than she actually was. They never saw her rub MDF’s nose in urine, but believed she had because she told them so. They believed she smoked more drugs than she bought from them, because she told them she did.
114 Ms W admitted PAA says things to get a reaction. Ms W’s sister, N, agreed. She said, “PAA loves the drama of her life and tries to incite sympathy from other people because she thrives on the attention.” AS also told the Court Expert that PAA “thrived on drama and getting an overreaction from people”. I strongly suspect they are all right in their assessment, which makes it surprising they seem to accept as “gospel” everything PAA has said about how poorly she treated her children.
N W
115 NW was also once a very close friend of PAA’s. She is also a very good friend of Ms F. She helped care for MDF when PAA was having BWS.
116 I found NW to be a somewhat more objective witness than her sister. She had spent a lot of time with PAA over the years. She admitted she had never seen PAA hit the children. However, she described many other aspects of PAA’s care of the children that gave her reasonable cause for concern. It should again be noted, however, that many of the things she found most alarming were things PAA told her, rather than things she observed personally.
117 NW was one of the witnesses who heard PAA making remarks comparing older children unfavourably with babies. My impression is that far more has been read into these remarks than is reasonable. PAA has maintained a good relationship with HA and TA since they went to live with their father. They have mainly very positive things to say about their mother, as does JHA who is now school age.
KD and EV
118 These two women were called to give evidence by the fathers, although neit her has any current involvement in the lives of the children. I mention them at this stage only to record that they both impressed me as witnesses who endeavoured to tell the truth to the best of their recollection.
Best interests of the children
119 In determining these disputes, I am required to make the orders most likely to promote the best interests of the children. I must keep in mind that the law says children have a right to know and be cared for by both their parents, unless it would be contrary to their best interests. With the same very important proviso, children also have a right of regular contact with both their parents and with other people who are significant in their lives.
120 I now turn to consider the matters I must take into account pursuant to s 68F(2) of the Family Law Act 1975 (Cth) and s
166(2) of the Family Court Act 1997 (WA). In doing so, I do not propose to discuss RF, save in the context of his desire to have contact with MDF. Although he has an application before the Court for residence, the reality is that he does not presently have a sustainable case for residence. His interest in the proceedings was primarily to support PAA’s application.
Wishes expressed by the children
121 The only child whose wishes could have any relevance is JHA. He was clear in his preference to continue residing with PAA and to have only alternate weekend contact with RA. JHA would prefer his visits with RA to coincide with RA’s contact periods with B. JHA also wishes to have much more contact with his half siblings, HA and TA. He does not wish to spend any time with AS.
122 JHA’s wish to remain living with his mother remained constant over the two interviews he had with the Court Expert. The primary reason he gave for wishing to stay with his mother – namely that he had lived with her all of his life and felt that was where he belonged, was perfectly logical and reasonable. The Court Expert could find “no evidence of priming, influencing or manipulation”.
123 JHA is only seven years of age. However, the evidence from his teachers indicates he is very intelligent boy. The Court Expert thought that JHA understood all of the questions asked of him. The impression I gained from reading the Court Expert’s report (and the evidence of the teachers) was that JHA is a boy of at least average maturity for his age, and possibly above average.
124 I note that RA has found JHA somewhat more introverted, quiet and reserved in his dealings with him in the months leading up to the trial. This could be the result of many factors, one of which may be that JHA is not happy with RA for pursuing his claim for residence in the face of JHA’s expressed wish to stay living with his mother.
125 I consider JHA’s wishes to be an important, but certainly not crucial factor in the proceedings. However, his expression of wishes is consistent with my finding that his primary attachment figure is his mother, with whom he has lived all of his life.
The nature of the children’s relationship with each of their parents and with other persons
JHA
126 JHA has a good relationship with almost everybody in his extended family system, save for AS, about whom he has negative feelings.
127 The Court Expert saw JHA with both parents. He observed
JHA to have a strong relationship with PAA. He sought her
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attention and showed positive interaction with her. JHA also enjoyed interacting with RA. I accept the Court Expert’s assessment that JHA appears to have a stronger connection to his mother than to his father. JHA was asked on two occasions to list the people he loved. On each occasion PAA was at the top of the list, followed by members of her family. On each occasion, RA was not on the list at all.
128 JHA has a good relationship with both MDF and BWS, with whom he has also lived since they were born. He is also very fond of H and TA. He also has a good relationship with B, with whom he spends time during contact visits with his father.
MDF
129 MDF also enjoys a good relationship with members of her extended family system.
130 She appears to have a close and affectionate relationship with her mother. The Court Expert observed that MDF had a strong relationship with PAA and showed positive interactions with her.
131 Notwithstanding the absence of any early contact with her father, I am satisfied MDF has a close and affectionate relationship with RF and enjoys the time she spends with him. She is well aware RF is her father. When they were seen together by the Court Expert, MDF actively sought RF’s attention and company. She enjoyed being hugged and held by him. I suspect their relationship has solidified since the interview with the Court Expert, as they have been spending even more time together.
132 I am also satisfied MDF has a good relationship with RA. She was seen by the Court Expert to have a strong connection with him, and enjoyed interacting with him. She actively sought him out, so that he could hold her and hug her.
133 MDF also appears to enjoy AS’s company.
BWS
134 BWS was only a toddler when he was seen by the Court Expert. The Court Expert concluded from his observations that JHA appeared to have a good attachment with PAA. BWS also seemed comfortable and connected to AS, and happy and comfortable with AS’s mother.
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135 All of the children appear to have an affectionate relationship with PAA’s mother and stepfather. RA’s mother was not called as a witness but apparently the children spend time with her as well.
The likely effect of any changes in the children’s circum stances, including the effect of separation from either of their parents, or other persons with whom they have been living
136 JHA, MDF and BWS have always lived with PAA. I am satisfied she is their primary attachment figure and they are closely bonded with her. I accept the Court Expert’s opinion that:
(a) removal of the children from her care would result in significant adjustment issues for them;
(b) if JHA was separated from MDF and BWS, he would suffer significant feelings of loss, unless they had a lot of contact; and
(c) long-term separation of any of the children from their sibling group would result in feelings of loss and confusion, and an inability to understand why they had been separated.
137 As the Court Expert said, such feelings of loss and confusion can have a major impact on children later in life. Potentially, it can have an impact upon their ability to form their own relationships. The potential negative impact of separation of the children from PAA and each other is therefore a major issue for consideration.
138 The potential problems would be compounded by what I found to be a complete lack of empathy and understanding on the part of RA and AS of the importance of the children having a good ongoing relationship with their mother. In my view, neither father (but particularly AS) would have the personal resources needed to assist the children to cope with being parted from their mother.
Practical difficulty and expense of having contact
139 All of the parents now live in the metropolitan area. The only difficulty associated with contact relates to handover.
140 Problems relating to transfer of the children between RA and PAA appear to have been overcome after arrangements were made for PAA to remain inside her mother’s home at the time of handover.
141 However, handover between PAA and AS is more problematic, because of their very poor relationship. Handover for the foreseeable future will need to take place with the assistance of a professional agency. This causes some difficulties, as the current
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handover service is not prepared to be as flexible as it has been in the past in allowing handovers to take place outside their standard hours.
142 Anglicare currently offers handover at East Perth between 4 pm and 6 pm each alternate Friday and Sunday and at Daisy House (Girrawheen) every Saturday from 9 am to 4.30 pm and every Sunday from 1 pm to 5 pm.
Capacity of each parent to provide for the children’s needs, including emotional and intellectual needs
Physical needs
143 PAA has for some time been living with her mother and stepfather in their three bedroom town house. Arrangements have been made to provide a fourth sleeping area. The accommodation is somewhat cramped, particularly when H and TA are visiting for weekend contact. However, it is adequate for the family’s needs.
144 In the longer term, PAA will either obtain accommodation of her own or continue to live with her family. If she remains with her family, there would be a likelihood they would resurrect earlier plans to look for larger accommodation.
145 PAA has struggled at times to maintain a long-term residence for the children. If she leaves her mother’s home, it is almost inevitable she will remain dependant upon the vagaries of the rental market. RA seemed to accept that PAA’s past frequent shifts in accommodation (including during the time she was living with him) were more the result of bad luck than bad management. There was no evidence to refute PAA’s claim that she had never been evicted. Furthermore, PAA made efforts to ensure she stayed in the same area to ensure JHA’s education was not disrupted.
146 There have been some aspects of PAA’s attention to the children’s physical needs that have been concerning. For example, she used fly spray to treat an infestation of nits. I accept she felt she could not afford the proper treatment at the time and wanted to get JHA back to school. This sort of problem is unlikely to occur again while PAA remains living with her mother. Furthermore, if she remains drug-free, PAA’s financial position will be stronger than it has been in the past. She can therefore ensure her limited income is used to provide for the children’s basic needs. I note that PAA is now paying her fair share of expenses in her mother’s home and is responsible for the shopping for the entire household.
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147 Although there have been some problems, I am satisfied PAA has always generally maintained a fairly decent home for the children, with little assistance from her partners. Her mother and stepfather used to visit regularly, on fairly short notice. They observed that her home was not always tidy (as would be expected with young children in the house) but it was “respectable”. Both PAA’s mother and stepfather were surprised to learn of her drug addiction, because they had no seen evidence consistent with her having such a problem. (AS’s mother was similarly unaware of her son’s attraction to drugs.)
148 RA admitted he did not complain about PAA’s parenting when they were together. His explanation was that he did most of the parenting (which I do not accept) and that she “behaved herself pretty well” the second time they got back together. AS admitted that the rental reports for PAA’s previous home were satisfactory – although he claimed the only reason was that he helped PAA clean up when an inspection was due. The evidence indicated he did not do much else.
149 RA also has somewhat cramped accommodation for the children. However, I am satisfied his arrangements are adequate for the children’s needs. He too will be dependant upon the rental market to ensure he can provide stable accommodation. He currently lives in the eastern suburbs, but has plans to shift elsewhere if he obtains an order for residence. This will involv e removing JHA from his present school.
150 I have no reason to doubt that RA can provide for the physical needs of JHA and MDF. He has cared for them during contact periods, without anything other than fairly minor complaints from PAA. MDF did have a nasty accident whilst RA was meant to be looking after her, but such things unfortunately do happen.
151 AS lives with his mother. He would only have one child living with him if he were successful in his application. His accommodation would not be a cramped as that offered by PAA and RA.
152 With his mother’s assistance, I am satisfied AS can make adequate arrangements for BWS’s care. PAA expressed some dissatisfaction with how BWS is returned at the end of contact visits. However, I was not convinced this was an indication of inadequate care. It seemed more likely that AS keeps BWS fairly busy during his very short time with him. I suspect he is probably somewhat overtired on his return home. This may be less of a
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problem when AS is able to have longer periods with BWS, as he will be less reluctant to ensure BWS has a nap when required.
153 RA and AS have given serious consideration to sharing a home so the children can live together if they are successful in their applications for residence. I agree with the Court Expert who thought that whilst such an arrangement might resolve some logistical issues, it would be “a melting pot of negativity”, unless there was a change in the way the fathers manage their relationships with PAA.
Emotional needs
154 I have serious reservations regarding the ability of each of
PAA, RA and AS to provide for the children’s emotional needs.
155 PAA (at least until she went to live with her parents) has often shown little regard for the children’s emotional needs. I find she has on occasions excessively disciplined the children, yelled and screamed at them far too much and behaved in an impulsive and erratic fashion on many occasions. I am satisfied she has denigrated both RA and AS in the presence of the children, using foul language.
156 Even when she was seen by the Court Expert with the children, PAA was observed to be rather brusque in her parenting. The Court Expert said her parenting style seemed to range from being quite forceful, through to being very gentle and caring. He described PAA’s parenting skills as “adequate”.
157 PAA’s poor parenting is probably the result of a number of interlinked factors. Her own upbringing was less than ideal, her personality is somewhat immature and histrionic, she has consumed far too many drugs and she is attracted to men who make very poor partners, and who have provided her with very little support in bringing up her children.
158 However, I agree with the Court Expert that PAA has been making signific ant progress in altering her lifestyle, changing the way in which she “operates” and has been gaining a level of maturity. This has been assisted by two important factors.
159 The most important factor is that PAA has largely given up the use of marijuana. There has certainly been one momentary lapse and there may have been one or more others. However, as the Court Expert said, this would almost be expected in a person with her history.
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160 The second important factor is the influence of PAA’s mother.
Although they have had a troubled relationship in the past, they
appear now to be on good terms. PAA listens to her mother. They have only fairly infrequent, and to be expected, disagreements. PAA’s mother has a very strong position on consumption of drugs, is level-headed and able to provide PAA with sensible advice and guidance.
161 Although PAA has been erratic, I also consider she has been a reasonably loving mother, most of the time. Even H and TA, who live with their father, have positive views of her. JHA, the only other child old enough to express himself meaningfully, is clearly very fond of her.
162 PAA has demonstrated an ability to accept that her past behaviour has been inappropriate. She was prepared to be critical of herself and is anxious not to continue making the same mistakes. This has been demonstrated by her readiness to attend a number of self-improvement courses, not just those recommended by the Court Expert. I am satisfied she has derived some benefit from those courses, and was not attending simply for “window- dressing”.
163 I am much less satisfied about the ability of RA and AS (but particularly AS) to provide for the children’s emotional needs.
164 Whilst a Court room does not provide the ideal circumstances in which to make an assessment of people as parents, RA did not seem to be a particularly warm or empathetic individual. I gained the strong impression that although RA wanted to do what was best for the children, he was also strongly motivated by his annoyance with PAA for having ended their relationship. He was absorbed with attacking PAA, rather than presenting the Court with a viable alternative for the care of the children. In short, I did not consider him to be “child focused”.
165 RA’s view of the ending of the relationship is that PAA “threw me out”. He was “hurt” when AS took up with his wife. He was “not happy about being deceived”. He was “disappointed and angry”. He felt that before their relationship broke down, PAA had been “taking [him] for granted”. He felt she treated him with “disrespect” before the proceedings commenced.
166 Nevertheless, RA has been able to manage JHA and MDF’s care during the times he has had them in his care. The Court Expert observed that RA was able to interact in a caring and positive manner with JHA and confidently managed conflict
between JHA and MDF. PAA described him as being “caring, gentle and polite”.
167 However, RA demonstrated an appalling lack of sensitivity when he retained JHA for over a month in 2003 and denied the little boy any contact (apart from one telephone call) with his mother and younger brother and sister. He originally claimed that JHA had never mentioned his mother during the time he had him, but later in his evidence recalled that JHA had asked whether his mother was “alright”. In any event, RA showed a limited understanding of why JHA may not have felt comfortable even mentioning his mother in his father’s presence.
168 I was even less satisfied about AS’s ability to provide for BWS’s emotional needs. I found him to be a thoroughly unpleasant individual. This finding was based not only upon my assessment of the evidence, but also on my observations of his demeanour and the expressions he used whilst in the witness box.
169 Notwithstanding having the benefit of the Court Expert’s advice on the likely adjustment issues for the children if separated from PAA, AS persisted in asking the Court to restrict PAA’s contact with BWS to once a month or “perhaps once a fortnight” supervised contact. He told the Court Expert he did not think there would be any problem with BWS adjusting because he had experienced no problems with him adjusting during contact periods
– which involved BWS being separated from his mother for only a few hours.
170 According to AS, PAA’s contact should start with four hours at a time. He acknowledged this was not necessarily the best for BWS, but it was what he himself had had to endure. This, and many other aspects of the evidence, suggests to me that AS is principally motivated by a desire for revenge.
171 Notwithstanding my generally unfavourable opinion of AS, it is important to note that the Court Expert observed he had a gentle approach to handling BWS and demonstrated good skills when calming him.
172 Whilst I accept that AS is able to play with children and keep them amused during contact periods, I could not see him being able to provide for BWS’s emotional needs if he was living with him on a full-time basis. I thought it significant that on one occasion when PAA walked out of the house in a “huff”, leaving AS to look after all three children, he was quickly on the telephone to his mother to enlist help.
Intellectual needs
173 All of the parents would attend to the children’s basic intellectual needs. PAA’s mother and stepfather would also be able to provide support for PAA in helping the children through school.
The children’s maturity, sex and background
174 There are two matters of importance in considering this factor.
The first is that RA is seeking residence of MDF, who is not his child. This raises some issues of significance – especially in light of the fact MDF’s biological father is now involved in her life and is known to her as her father. In this context, I found RA’s description of what occurred on the occasion MDF needed to have a shower at his home to be very instructive. He announced with some fervour that there was “no way” he was going to be anywhere near MDF in the bathroom – he was not going to allow himself to be compromised. His elaborate description of the way in which the process was managed (so as to ensure he was not in the bathroom at the same time as MDF) highlights the kind of issues that will arise if he were ever permitted to assume responsibility for her full-time care.
175 The second issue is the tender years of the children. The separation adjustment issues are of especial importance with a child as young as BWS.
The need to protect the children from physical or psychological harm
176 I have found that PAA has excessively disciplined the children. This is a matter of serious concern. However, PAA has properly treated these proceedings as a “wake-up call”. JHA has told the Court Expert his mother has not hit him since the proceedings commenced. Other evidence, including that of PAA’s mother and GA, satisfies me she has been a lot calmer and less volatile since October 2003.
177 Nevertheless, parenting courses and counselling will not be enough to change completely PAA’s basic personality functioning. I accept it is very likely she will continue to be a fairly impulsive person. I therefore accept there is some risk of PAA smacking the children more than she should. However, I am certainly not satisfied that every bruise and scrape the children have experienced during the time they have been in her care has been the result of inappropriate discipline. I note in particular BWS has been seen regularly at Daisy House. Although the supervisors were not prepared to accede to AS’s wish to carry out a thorough inspection
at every handover, they have not seen any indication that BWS has anything other than normal bruises and scrapes. Had there been any signs of maltreatment of BWS, they would have been noted and reported.
178 Although the fathers, AS in particular, made a great fuss about the possibility of PAA killing the children, I am not satisfied she would ever be likely to cause the children any serious physical harm. It is notable also that two of the potentially more dangerous incidents involving the children have occurred whilst they were in RA’s care – the occasion JHA was hurt by a dog and the occasion MDF suffered concussion when falling off playground equipment.
179 It is difficult to know whether either AS or RA would discipline the children excessively if they were to live with them. RA and AS have had very limited time with the children. When they were living with PAA, the disciplining of the children seems largely to have been left to her. It is far easier to care for young children for a few hours or days at a time than it is to be responsible for their full-time care.
180 In assessing the risk of psychological harm, the most worrying factor for the children is the ongoing level of conflict between their parents. In particular, the relationship between PAA and AS is so poor that it is not feasible for them to come into contact with each other. Supervised handover of contact will be essential to ensure the children are not exposed to behaviour that would cause them psychological harm.
181 The next most concerning factor is the possibility the children may again be exposed to drug use. PAA, RA and AS all claim to have given up illicit drugs. I am prepared to accept each of them has abstained and they should be congratulated for this. However, they have all used drugs over a very extended period of time. They will have to remain drug-free for much longer yet before I would be satisfied they will not resort to their previous habit.
182 In being prepared to accept that PAA has largely ceased using drugs I have taken into account the following matters: -
•Her demeanour when giving evidence on the topic was such that I was inclined to believe her. She says she does not want to lose the respect of her mother and stepfather, and knows she would do so if she resumed her habit.
•She has failed only one drug test since these proceedings commenced. She claims that result was caused by passive
smoking. There was no expert evidence to assist me to determine whether this was a likely explanation. However, PAA was prepared to admit she had taken one “puff” on another occasion when she was not tested.
•The information given by the children to the Court Expert was completely consistent with PAA’s evidence about having stopped consuming marijuana when these proceedings commenced, which was also about the time she moved to live with her parents.
•The improvement in her outlook and behaviour observed by others, including GA, is consistent with her kicking drugs.
•Her excitement when showing GA her drug-free test results suggests she is delighted with her commitment to giving up drugs.
• PAA’s mother has not observed her smoking at home and
PAA does not go out socially much at all.
•PAA tends now to link drug use with RA and AS, and is keen not to mix with their type in the future. PAA is known to associate with only one person who uses drugs.
•The one known drug user is AR, who uses marijuana. (He is also RF’s next door neighbour and used to share a home with RF.) AR has been known to PAA and her family for a very long time. I accept PAA’s evidence that her friendship with him does not centre around drugs. He was the person who allowed her to have a “puff” on his joint. However, he was very quickly made aware by PAA’s family of their disappointment in his actions and he apologised. MM, who I sense is a fairly good judge of character, seems to like AR, and says he is a very different personality to the other drug users with whom PAA has previously associated.
•I was inclined to accept the evidence of Ms F, who claims PAA told her she used a detoxification method to avoid returning a positive drug result. However, that does not mean what PAA said was the truth. As already noted, PAA says things to get a reaction. She admitted she has a tendency to “try to out-shock everyone and have people notice me and be interested in me”. I note, for example, that PAA allegedly told Ms F there was no way she could be contacted to do a random drug test, would not answer her mobile phone and would refuse to do the test. However, there is no evidence
PAA had ever been difficult to contact for the purposes of a test or has ever refused to undergo a test. In fact, the only person who has not been compliant with drug testing has been RA.
•PAA has tried detoxification on three previous occasions. She relapsed each time. However, I accept her evidence that it was exceedingly difficult for her to kick a drug habit when she had to return home to live with habitual drugs users. In this regard, RA admitted he was smoking marijuana fairly heavily when PAA went into detox when they were living together, and I doubted his claim he cut back when she came out. Her current drug-free environment is much more conducive to her ending her association with drugs.
•I am also satisfied PAA is not drinking alcohol at present and has not done so for a long time. She has previously had a problem with alcohol, especially when she could not get marijuana.
•I also accept PAA does not use other drugs. She has taken amphetamines very occasionally, in the past. I was inclined to accept PAA’s evidence that the last amphetamines she consumed were provided by AS.
183 If all the parents remain drug-free (and refrain from disputation with each other), there is a much better chance they will focus on the welfare of their children. This will greatly reduce the chances of them being exposed to physical and psychological harm.
The attitude to the children and to the responsibilities of parenthood by each parent
184 PAA’s attitude to parenthood can be ascertained by the findings I have made above concerning the way in which she has cared for the children since they were born, and the efforts she has made to improve since late 2003.
185 The Court Expert concluded that RA had a positive attitude to parenting. He has remained involved in JHA’s life and taken an active interest in MDF’s wellbeing. However, the Court Expert properly considered that his lack of contact with JHA when he went to the USA raises some questions about his attitude to parenting at that time. The Court Expert concluded that RA had a variable capacity to recognise and meet JHA’s needs.
186 RA has also provided only a pittance by way of child support for JHA since the separation. He had a lump sum available to him when he went to the USA (admittedly only $8,000) and paid nothing from that to support his son. He has a $23,000 car but does not pay anything other than nominal child support. He has no idea how much it costs to send JHA to his school, buy his uniforms or provide for his extracurricular activities. AS has paid even less by way of child support for BWS.
187 An important matter when assessing the responsibilities of parenthood is to consider the likelihood of each parent promoting a positive image of the other parent to the children. Notwithstanding PAA’s negative view of RA and AS, I agree with the Court Expert that it is likely she will promote a positive relationship between the children and their fathers, although I anticipate she will have greater difficulty in doing so in the case of AS.
188 History has demonstrated PAA will ensure contact occurs.
She has allowed contact, whether or not there has been a Court
order. She has made sure JHA goes on contact every weekend, even though he undoubtedly wants to see more of H and TA. She allowed RA to have regular contact immediately after both of his sojourns in the United States. RA admitted that before the proceedings commenced, PAA allowed him to come into her home at handovers. He would sit down for a cup of coffee or smoke drugs with her, which he would supply as a “peace offering”. PAA still advises RA when there are events at school he may wish to attend.
189 Although PAA does not like either RA or AS, and says rude and offensive things about them, I did not get the impression she would feel pleased if the children decided they did not want to see their fathers. She had tears in her eyes and a “frog in her throat” when she was asked to describ e RA and AS’s good qualities. She said that not only was RA gentle, polite, nice and friendly but that “he loves his son”. Similarly she said AS was “good with my kids and when things were going nice he was nice too”. She went on to say that, although she was not happy with what they had done to her, she could forgive them.
190 It is nevertheless important for PAA to recognise it is not appropriate for her to continue to speak poorly about the children’s fathers, even if she does privately regard each of them as being “deadbeat Dads”.
235 Although PAA will be able to leave her mother’s home after she completes her counselling, she should not move the children’s home outside the metropolitan area of Perth without the consent of the other parties or an order of the Court.
Injunctions
236 The Child Representative seeks orders restraining PAA from physically disciplining the children, consuming any illicit substance while the children are in her care, having a blood alcohol reading in excess of .05 whilst the children are in her care, denigrating the fathers, associating with known drug users (including but not limited to Mr B, Ms W and NW ) and engaging in prostitution or other employment of “ill repute”. The Child Representative also proposes that PAA be required to take her antidepressant medication in accordance with the recommendation of her family doctor and attend fortnightly counselling at the Bentley Health Clinic.
237 I consider it important that PAA refrains from physically dis ciplining the children. I also consider it vital that she refrains from consuming illicit substances. However, it would be almost
impossible to police an order requiring her not to have a blood alcohol reading in excess of .05 whilst the children are in her care. Many responsible parents have a blood alcohol reading in excess of that amount whilst looking after children. I see no reason for PAA to be restrained in the manner proposed, especially as I accept she has not been consuming alcohol for some time. Like all other drivers, PAA should not drive a motor vehicle with a blood alcohol reading any higher than .05.
238 Although difficult to enforce, it is appropriate there be injunctions preventing PAA from denigrating the children’s fathers. The evidence indicates that she has done this repeatedly in the past, and an order will remind her that this is not appropriate. Similar orders will be made against the fathers for the same reasons.
239 I am satisfied PAA now recognises the necessity for her to take her antidepressant medication and to access appropriate medical services. I do not consider it is appropriate for the Court to require her to do so and I will therefore not grant the injunctions sought.
240 I am also not satisfied PAA should be restrained from associating with “known drug users”. PAA appreciates that if she wishes to remain drug-free, it is important she is very careful about the company she keeps. However, the injunction proposed by the Child Representative would, for example, prevent her from having any association with AR. He is a long standing friend of PAA’s. She sees him when she visits RF. There is no evidence to indicate that AR has ever done anything inappropriate in the presence of the children.
241 I am also not satisfied it is appropriate to grant an injunction restraining PAA from engaging in prostitution or other employment of “ill repute” – whatever that might mean. There is no evidence that PAA has worked as a prostitute since the one shift she did at a brothel. I have no doubt PAA’s self-esteem is now much higher than it was at the time she did that work, and I trust she will not consider earning money by such means again.
242 For similar reasons, I am not prepared to make all the injunctions the Child Representative proposes to control the conduct of RA, AS and RF. In particular, to prevent RA and AS from “associating with known drug users” would eliminate most of the people who appear to be their best friends. The important
matter is for RA and AS themselves to be drug-free so they can properly attend to their children’s needs.
243 In order to police the injunctions relating to consumption of drugs, the Child Representative seeks an order that the parties continue to undergo random drug testing at his request. I presume this means the Child Representative is prepared to have some ongoing involvement in this matter, notwithstanding his current grant of Legal Aid will presumably end in the not too distant future.
244 I am pleased that the Child Representative is prepared to have this ongoing involvement, since I consider random drug testing to be essential for at least the next two years. I accept the Court Expert’s view that it would be unwise to “turn off the spotlight” on PAA because of the possibility she could relapse into drug use or other inappropriate behaviour. Although the Court Expert acknowledged PAA had been altering her lifestyle and seems to be maturing, I agree with him that this “does not happen overnight”. The Court Expert felt PAA could have a situational crisis, which could lead her to act in ways not in the best interests of the children. She therefore needs support for an extended period.
245 Since all parties say they will not be consuming illicit substances in the future, and since it is against the law in any event, I am minded to make an injunction restraining each of them from doing so – whether or not the children are in their care at the time. I will, however, give the parties an opportunity to make further submissions on this point before making orders, since the injunctions they sought were less extensive. The difficulty with making an order restraining the parents from consuming illicit substances only while they have the children in their care is threefold. First, it sends entirely the wrong message that it is acceptable for them to break the law and resort to their former bad habits, which I am convinced will not be in the best interests of their children. Secondly, it makes it much more difficult to establish whether or not the injunction has been breached, since a positive result from a random test could be put down to consumption whilst the children are not in their care. Thirdly, usage of drugs whilst the children are visiting the other parent will make long-term relapse much more likely.
246 The Child Representative also seeks an order that AS and RA attend the “Mums and Dads Forever” Program. It was recommended they do so a long time ago, but neither of them has
got around to doing it. Both AS and RA appear to be under the misapprehension that the “Mums and Dads Forever” program is a “parenting program”. They consider it would be more appropriate for them to attend an “age specific” parenting program. “Mums and Dads Forever” is not a parenting program. There is a possibility that attendance at this outstanding program may assist RA and AS to communicate more effectively with PAA in relation to matters concerning the children. The program has had spectacular success in other high conflict cases and may well be the key to the children being freed from witnessing unnecessary conflict between their parents. It may help RA remember how he felt when he was exposed to arguments between his parents.
247 I request that the Child Representative contact “Mums & Dads Forever” and recommend that AS and RA not attend the program together. I consider AS is an undesirable influence on RA, and their concurrent involvement in the program could be disruptive for others taking part. I also recommend that the Child Representative advise “Mums & Dads Forever” that if both fathers enrol for the course, AS should be allowed to attend first, as his need is greater.
Injunction sought by RF concerning MDF
248 During the course of the hearing, RF raised serious concerns about MDF kissing with an open mouth and taking an interest in his genitalia. He said this had been happening for some weeks before the hearing. After hearing this evidence, AS also gave evidence of similar behaviour towards him.
249 RA said he was unaware of such behaviour. He said that MDF normally did not kiss him but just gave him a hug, although on occasions she gave him a “quick peck on the cheek”. However, after the trial was adjourned for a few weeks, RA gave further evidence, in which he claimed that MDF had approached him at the previous contact handover and given him an open mouth kiss. He said she was “more touchy” than she had been previously.
250 RF was so alarmed by these developments that he asked the Court to terminate MDF’s contact with the other fathers and for her contact with PAA’s stepfather to be supervised. However, as the Court Expert said, MDF’s behaviour could be the result of any number of factors, many of which are not consistent with her having been abused. There is room for much concern, but insufficient evidence to make any finding in relation to this matter. In fact, I am not even prepared to find conclusively that MDF behaved towards AS and RA in the way they alleged. It is
perfectly possible she did, but it was interesting that neither of them mentioned this behaviour until after they heard RF giving his evidence.
251 Regrettably, it is a fact of life that MDF has regular exposure to multiple males who have an opportunity to abuse her. The order proposed by RF is a very draconian one, and impracticable insofar as it would effect PM, with whom MDF lives most of the time. However, I am not satisfied there is any advantage to MDF in having exposure to AS. I therefore intend to:
(a) restrain RA from allowing AS to come into contact with
MDF during contact periods;
(b) end RA’s contact with MDF within six months, so long as
RF has continued to exercise regular contact with her;
(c) not order overnight contact between RA and MDF during school holidays (as proposed by the Child Representative);
(d) restrain RA from leaving MDF unsupervised in the company of B; and
(e) restrain PAA from leaving MDF unsupervised in the company of HA.
252 In making these orders, I wish to make it very clear I make no finding that either RA, AS, B or HA has been guilty of any impropriety. However, MDF’s behaviour is concerning and the orders I propose will reduce the number of males who have opportunity to abuse her.
253 PAA and her mother will need to be vigilant with MDF and not hesitate in bringing further concerns to the attention of the Child Representative or the relevant authorities. In this regard, I have in mind PAA’s evidence that she left it to RF to bring one matter of concern to the attention of the Child Representative because she feared she would be accused of making false allegations as a result of how an earlier concern had been handled.
Postscript
254 I recently gave leave to the Child Representative to file an affidavit annexing a report from Dr Peter Winterton, the Medical Director of the Child Protection Unit at Princess Margaret Hospital.
255 Dr Winterton saw PAA and BWS at Princess Margaret on 4
March 2005. PAA advised Dr Winterton that BWS had sustained a black eye whilst attending his regular play group on 1 March 2005. He had also attended a crèche whilst PAA was attending a medical
appointment on the day before BWS’s visit to Princess Margaret. Dr Winterton was advised that PAA had brought BWS to the hospital because of her concern about a bruise on his penis. She had also noted a “little blood on his ‘poo’.” On examination in the emergency department, a small anal fissure had also been observed. PAA was unaware of how BWS had suffered the injury to his penis.
256 Dr Winterton examined BWS, who he noted was “very active, playing continuously, bright-eyed and very chirpy”. He also observed that BWS obeyed his mother’s instructions very well. Examination revealed bruising to BWS’s penis and perianal redness with a tiny anal fissure. BWS’s left eye was grazed, with a bruise that had become yellowish-brown. In my view, the “black eye” would be consistent with an injury having been sustained a few days prior to presentation at the hospital as advised by PAA.
257 Dr Winterton was unable to suggest likely causation of the genital bruising. I consider it is unlikely to have been the result of sexual or physical abuse. It is most likely it was caused by accident. Dr Winterton observed that the anal fissure was “in keeping with the passage of a hard stool”.
258 In relation to bruising on BWS’s legs, Dr Winterton made what I regard as being a very pertinent observation: “BWS had numerous toddler-type bruises”. The parties would do well to bear this expression in mind when pondering the cause of future bruising on this little boy.
259 Dr Winterton did not propose any treatment or any formal follow-up through the Child Protection Unit but a referral was made to the Department for Community Development and the Police. I take judicial notice of the fact that this is in accordance with standard procedures at Princess Margaret Hospital (as was confirmed by the Child Representative in his submissions).
260 BWS is a very active little boy who spends a lot of time with other children. He is going to have bruises and grazes and probably nappy rash and potentially a host of other ailments. He should not be examined minutely and photographed and taken off to hospital or doctors unless there is very good reason for doing so. The latest batch of injuries has properly been drawn to the attention of the Agency with statutory responsibility for investigation of child abuse. In the event there is any cause for concern following proper investigation I would expect the officers involved to advise the Child Representative and take appropriate action.
(Page 51)
Orders
261 Subject to hearing from counsel and RF, I propose to make the following orders:
1. All previous orders in relation to the children, JHA born August 1997, MDF born August 2000 and BWS William born June 2003 be discharged.
2. The said children reside with PAA (“the mother”) and she have sole responsibility for the children’s day to day care, welfare and development whilst they are residing with her.
3. RA have contact with JHA:
(a) from 4.30 pm Friday to 4.30 pm Sunday each alternate weekend (extending to 4.30 pm Monday in the event of a public holiday);
(b) each intervening week from after school Thursday until the commencement of school on Friday;
(c) for one half of all school holidays provided he is available to personally supervise JHA;
(d) from 4.30 pm on the Saturday before Father’s Day to 4.30 pm on Father’s Day;
(e) commencing 2005 and each alternate year thereafter from 10.00 am Christmas Day until 6.00 pm on Boxing Day;
(f) commencing 2006 and each alternate year thereafter from 10.00 am on Christmas Eve until 10.00 am on Christmas Day; and
(g) reasonable telephone contact to be initiated by JHA.
4. The contact provided for in paragraphs 3(a) and (b) be suspended during school holiday periods and from 4.30 pm on the Saturday before Mother’s Day to the end of that weekend.
5. Wherever practicable, RA’s contact with JHA be exercised when the mother’s eldest children, HA and TA, are not having contact with her.
(Page 52)
6. For the purposes of contact (other than the midweek contact provided for in paragraph 3(b)), RA shall collect and return JHA at the mother’s residence and the mother shall remain inside the home at the time of handover.
7. RA have contact with MDF from 9.00 am to 6.00 pm Sunday on each alternate occasion JHA is having weekend contact.
8. The contact provided for in paragraph 6 be discharged at the expiration of six months from the making of these orders, with liberty to RA to apply for an extension of the contact order if RF has ceased to exercise regular contact with MDF.
9. On or about the expiration of five months from the making of these orders RF provide to RA and the Child Representative an affidavit or Statutory Declaration providing details of the occasions on which he has exerc ised contact with MDF.
10. RF have contact with MDF at such times as may be agreed between him and the mother. In the event of disagreement in relation to the extent of such contact:
(a) RF have no less contact with MDF than RA is entitled to exercise with JHA;
(b) both parties have liberty to apply in relation to the definition of contact.
11. AS have contact with BWS:
(a) until BWS attains the age of two years:
(i) each alternate Saturday from 9.00 am to
4.30 pm;
(ii) each intervening weekend from 6.00 pm
Friday to 4.30 pm Saturday.
(b) after BWS attains the age of two years each alternate weekend from 6.00 pm Friday to 3.00 pm
Sunday;
(c) commencing in 2006 for one half of school holidays, provided that:-
(i) AS is available to supervise BWS
personally; and
(ii) contact shall not be exercised for periods longer than eight days at a time until BWS commences pre-primary school;
(d) from 4.30 pm on the Saturday before Father’s Day to 4.30 pm on Father’s Day;
(e) commencing 2005 and each alternate year thereafter from 10.00 am Christmas Day until 6.00 pm on Boxing Day;
(f) commencing 2006 and each alternate year thereafter from 10.00 am on Christmas Eve until 10.00 am on Christmas Day;
12. The contact provided or in paragraph 11(b) be suspended during school holidays commencing in 2006 and from 4.30 pm on the Saturday before Mother’s Day to the end of that weekend.
13. Wherever practicable, AS’s contact with BWS be exercised when the mother’s eldest children, HA and TA, are not having contact with her.
14. Subject to the consent of Anglicare, handovers for the child, BWS, shall take place at Anglicare’s East Perth office but if the East Perth office is unavailable, the handover shall take place at Daisy House, Girrawheen. In the event neither place is available, handovers shall be conducted by the respective grandmothers, “Mother Hen” or such other persons as may be mutually agreed.
15. AS shall pay the costs associated with supervision of handover of BWS.
16. The mother, RA, AS, and RF be restrained and in junctions be granted restraining each of them from:
(a) physically disciplining any of the children; (b) consuming any illicit substance;
(c) denigrating each other to the children or to others in the presence in the children;
(d) removing the children from the State of Western Australia without giving the other parent 28 days’ notice in writing of their intention to do so; and
(e) removing any of the children from the Commonwealth of Australia without written consent of the parents or without an order of the Court.
17. The mother be restrained and an injunction be granted restraining her from:
(a) changing the children’s principal place of residence to any place outside the metropolitan area of Perth; (b) changing the children’s principal place of residence from the home of her mother until she has undergone relationship counselling as recommended by the Court Expert; and (c) allowing MDF to be left unsupervised in the company of HA. 18. RA be restrained by injunction and an injunction be granted restraining him from:
(a) allowing MDF to come into contact with AS ;
(b) allowing MDF to be left unsupervised in the company of his son, B.
19. Each party shall advise the other parent of any change of address.
20. The mother, RA and AS undergo random drug testing at the request of the Child Representative and the following conditions shall apply:
(a) the tests are to be undertaken within 24 hours of a request being made;
(b) in the event of a request being made later than 5.00 pm on a Thursday in any week, the time for compliance with the request shall extend until 5.00 pm the following Monday;
(c) on receipt of the results of the tests, the party undergoing the test shall forthwith provide a copy of the result to the Child Representative and the other parties to the proceedings.
21. In the event of a party failing to attend for a drug test pursuant to this order or recording a result suggesting the consumption of illicit substances, the Child Representative and the other parties have leave to relist the proceedings.
22. RA and AS promptly enrol in and attend the “Mums and Dads Forever” program and shall provide to the Child Representative confirmation of their enrolment and confirmation of their completion of the program.
23. In the event Legal Aid can be made available for the purpose, the Child Representative be requested to arrange for a review of the arrangements for the children at the expiration of one year from the date of these orders.
24. Save for circumstances of emergency or contravention proceedings, all parties are restrained and an injunction is granted restraining them from commencing further proceedings in relation to the children until they have first made reasonable endeavours to resolve matters in dispute by attendance at the Family Court Mediation and Counselling Service, a Family Relationships Centre, or mediation provided by Centrecare, Relationships Australia or Anglicare.
25. The applications and responses of all parties be otherwise dismissed.
(Page 56)
I certify that the preceding [261] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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