ABBEY and GUTHRIE
[2018] FCWA 116
•28 JUNE 2018
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: SUPPRESSED
PERTH
CITATION: ABBEY and GUTHRIE [2018] FCWA 116
CORAM: THACKRAY CJ
HEARD: 21 JUNE 2018
DELIVERED : 28 JUNE 2018
FILE NO/S: PTW 745 of 2016
BETWEEN: MS ABBEY
Applicant
AND
MR GUTHRIE
Respondent
Catchwords:
CHILDREN -With whom a child spends time - Some matters resolved by consent at trial - Parental responsibility - Presumption in favour of equal shared parental responsibility does not apply due to father’s repeated derogatory taunts - Not in the best interests of the children for parents to have equal shared parental responsibility - Mother granted sole parental responsibility - Father may be a flight risk - Father’s travel with the children restricted - Mother permitted to travel with the children - Injunction restraining parties from walking on pathway behind their respective homes
Legislation:
Family Court Act 1997 (WA), s 70A, s 89AC(3)
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Self Represented Litigant |
| Respondent | : | Self Represented Litigant |
Solicitors:
| Applicant | : | Self Represented Litigant |
| Respondent | : | Self Represented Litigant |
Case(s) referred to in decision(s):
Mellick & Mellick [2014] FamCAFC 236
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
1I am required to determine three issues between [Ms Abbey] (“the mother”) and [Mr Guthrie] (“the father”) which primarily concern their two children, aged 10 and 8 years. All other issues were resolved by consent at the commencement of the trial.
The three issues
2The issues requiring determination are:
•who should have parental responsibility;
•whether the parties can travel interstate or overseas with the children (and if so on what conditions and who should hold the children’s passports); and
•whether the father should be allowed to walk past the mother’s home.
Matters resolved by consent
3There were originally many more issues, but it became apparent at the outset of the trial that they were not as contentious as first thought. In particular, the father did not seem serious in pursuing his claim for equal time with the children. He seemed surprised when I pointed out to him that the mother’s proposal would give him one more day each four weeks than he currently has with them. The father said that would acceptable, although he would have to speak to his employer, presumably to see if the extra day could be accommodated.
4The following orders were made by consent:
1.The children, [MARY GUTHRIE], born [in] 2008 and [RONALD GUTHRIE], born [in] 2010 live with the mother, [MS ABBEY].
2.The children spend time with the father, [MR GUTHRIE], as follows:-
(a)On a rotating four week roster;
(i)in the first fortnight from 6.15 pm, Saturday to the commencement of school on the Wednesday morning; and
(ii)in the second fortnight, from the conclusion of school on Friday until the commencement of school on Wednesday morning.
(b)From 9.00 am, Monday to 6.15 pm, Sunday during the first week of each of the school holidays commencing at the end of terms 1, 2 and 3.
3.The children spend the second week of each of the school holidays commencing at the end of terms 1, 2 and 3 with the mother.
4.The parties have equal time with the children during Christmas holidays as follows:
(a)the mother to have the first half in 2018, and each alternate year thereafter, to include Christmas Day; and
(b)the father have the first half in 2019, and each alternate year thereafter, to include Christmas Day.
5.The mother and father each be restrained and an injunction is hereby granted restraining them from denigrating or speaking poorly of the other in the presence or hearing of the children.
6.The mother and father each be restrained and an injunction is hereby granted restraining them from communicating with the other unless in relation to issues concerning the children. Any such communication shall not include any derogatory comments. Where a response is required, the other parent shall respond promptly and concisely.
7.The mother and father each be restrained and an injunction is hereby granted restraining them from discussing the court proceedings with or in the presence of or hearing of the children or either of them or disclosing to the children any of the court documents.
8.Each parent have liberty at reasonable times to contact the children by telephone and electronic communication while they are in the care of the other parent.
9.By consent, the mother and the father immediately advise the other if the children visit their house at times when they should be with the other parent, and shall immediately send the children home unless there is a welfare issue.
10.The Form 2 application filed by the father on 21 June 2018 [seeking an adjournment for the parties to attend a Late Intervention Dispute Resolution Conference] be dismissed.
Background
5The mother and father commenced cohabitation in 2005. The mother is [Scottish] and the father is [Italian]. They met in [Country A] and ended up moving to Australia permanently in 2012/13 after spending time living [overseas]. There are two children of their relationship, [Mary], born in 2008, and [Ronald], born in 2010.
6The mother says the parties commenced living separately and apart under the one roof in January 2014, although “continu[ing] to do things together as a family”. In July 2014, the mother went overseas on holiday and had what she described as a “brief fling”. The father reacted badly, notwithstanding both had been seeking new partners. It was apparent at the trial that the father is still deeply offended. He excused his behaviour by saying, “being [Italian] … we behave like this, we are emotional, we cannot remain calm – it is not possible”.
7The father had earlier explained in his trial affidavit (errors in original), “between [Italian] and [Scottish], we ve got different approach and way to express parenting and feeling. I am loud, emotional, hand on, straight forward, she’s the opposite”. Having read the polite and conciliatory letter from the father’s brother to the mother at the time the father held the children over in [Europe] in 2014/2015, I am not convinced that the stark differences between the parties’ methods of communicating with each other relate to matters of national temperament.
8The mother quickly moved out of the home after the father’s behaviour deteriorated following her “fling”. In his trial affidavit the father says, “I kicked the [mother] out of the house, she wasn’t paying any rent or bills, she would have stayed longer otherwise”. They initially had a 50/50 care arrangement for the children. The mother says that at the time she agreed to this she did not realise how “conflictual the relationship between her and [the father] would become or how long this conflict would last for”. She described correspondence from the father becoming “increasingly paranoid, irrational and abusive”. Eventually the mother obtained a Violence Restraining Order. At Christmas 2016, the father went to the mother’s home and banged on the door, in the mistaken belief that the children should have been returned to him. He did so knowing that his conduct was in breach of the VRO.
9The mother had a number of concerns about the father’s parenting. In August 2016 the parties signed an undertaking that “without admissions or prejudice in order for our children to feel safe we agree to behave towards them in the following way; no physical contact that may cause physical injury or threats to cause physical injury”. The mother was not cross‑examined on her claim that the father described the undertaking to the children as “just a piece of paper” and told them he did not have to adhere to it.
10In June 2017, the mother took up residence in a home she had purchased in [Town B]. The father moved into a rental property only about 100 metres away just a few months later. Although annoyed, the mother did nothing about the father moving to live so close. The father said it was only coincidental the homes were nearby – it was the use of [the facilities] that attracted him.
11There have been proceedings in the Court over the last couple of years. In January 2017, the mother filed a further amended application that has led to the trial I conducted recently in [Town C]. On 15 March 2017, at a hearing in [Town C] which the father did not attend,[1] an order was made “until further order” that the children spend time with the father each fortnight from 6:15pm on Saturday to the commencement of school on Wednesday. This 10/4 night a fortnight arrangement was still in place at the time of the hearing before me as the father had not applied to have it varied pending the trial.
Parental responsibility
[1]The father claims he sent a fax seeking to attend the Court hearing “using phone interview”. The father did not explain why he could not come to the Court in [Town C] as the mother did.
12The mother seeks an order for sole parental responsibility, whereas the father seeks an order for equal shared parental responsibility.
13Section 70A of the Family Court Act 1997 (WA) (“the Act”) provides that “when making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility”. However, the presumption does not apply if, inter alia, there are reasonable grounds to believe that a parent has engaged in abuse of the child or has engaged in family violence. The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility.
14The mother’s evidence, if accepted, would indicate that the father has engaged in abuse of the children within the meaning of the Act. Given the gravity of such a finding, the fashion in which the truncated trial was conducted by self-represented parties and the fact English is not the father’s first language, I consider it would be undesirable to reach a positive finding on this issue, even though the mother presented as a reliable witness. I prefer instead to conclude that the father has engaged in family violence as a result of his “repeated derogatory taunts” toward the mother over some years, which I have no doubt have coerced and controlled her in that she has to be continually wary of the father and his reactions to her. The presumption in favour of equal shared parental responsibility therefore does not apply, given the definition of “family violence” in s 9A of the Act.
15Section 89AC(3) provides that if there is an order for shared parental responsibility, which involves making a decision about a major long-term issue, the order is taken to require the parents to consult the other in relation to the decision and to make a genuine effort to come to a joint decision. The equivalent provision in the Family Law Act 1975 (Cth) has been interpreted by the Full Court of the Family Court of Australia as imposing an obligation on the parents to consult; to make a genuine effort to come to a joint decision; and “to jointly decide major long-term issues”: Mellick & Mellick [2014] FamCAFC 236 at [50].
16It would not be in the best interests of the children for these parents to have equal shared parental responsibility as it is impossible for them to have the type of respectful discussions needed to make a genuine effort to resolve major long-term issues. The mother’s attempts to engage the father in discussions about issues as simple as the children attending [extracurricular activities] or where they are to have dinner on Saturday evening (see Annexure J to the mother’s trial affidavit and Exhibit 1) shows the nature of the problem. The parties have attended mediation a number of times, but on the last occasion they were unable even to be in the same room and two mediators were required to conduct a “shuttle” mediation.
17As the mother pointed out in cross-examination, the father is not even prepared to make eye contact with her. He did not do so during the entire hearing even when cross‑examining the mother. His demeanour toward her was arrogant, smug and overbearing. Any requirement for the mother to have to consult with him and come to decisions jointly would place her in a most difficult situation that could adversely impact on her ability to parent the children. Inter alia the father has called the mother, or said to her the following, sometimes in the presence of the children (some punctuation has been corrected but errors are otherwise in the original in this and all other quotes from the father):
•“cocksucker”;
•“you are as stupid as fuck, so sneaky”;
•“you’re a scumbag”;
•“I can’t believe your arrogance, your [Scottish] cocksucker”;
•“I hope you’re happy with what you’ve done dick head”;
•“I will never be friends with a cunt like you or your friends”;
•“Are you gonna help [Mary] to get laid as well when she’s old enough”;
•“When are you gonna see a psychologist for yourself bitch”;
•“It seems that you’re playing a blame game like a school girl so please be business like focus and show me that I’m wrong”;
•“You need to act as a grown up not an 18 yo”; and
•“Don’t give me your crap ass hole”.
18I agree entirely with [the] Family Consultant who wrote in the Case Assessment Conference Memorandum that “communication of this nature and the derogatory comments do nothing to foster an amicable relationship between the parties, but more significantly suggest a distinct lack of insight on the part of the father into his own behaviour”.
19The Family Consultant was also quite right when he said that:
… the most immediate risk factor to the children’s wellbeing relates to the emotional and psychological risks arising from the acrimonious and conflictual dynamic between the parents … Given the length of time the parties have been separated, coupled with the amount of involvement both have had in the care of the children since separation, the Family Consultant considers their children deserve much more from their parents than what they appear to be experiences [sic] presently … In the [sic] regard, the Family Consultant encourages both parties, and the father in particular to take stock of their contribution, and then take steps to improve the quality of their relationship.
20The mother has taken primary responsibility in the past for making arrangements for the children, including during the times when she has cared for the children in the absence of the father. She can be trusted to make good long-term decisions for the children. She does not seek to have parental responsibility for the purpose of changing the children’s names and nor does she seek to make arrangements that make it significantly more difficult for the children to spend time with the father. Orders will be made accordingly.
Travel arrangements
21The mother sought the following orders relating to the children travelling:
8.For the children’s passports to be released into the control of the [mother] and for the [mother] to retain control of the passports.
9.For the children’s names to be removed from the Family Law Watch list.
10.Upon the [mother] giving two months notice, the [father]’s time with the children be suspended to enable the [mother] to travel overseas or in Australia with the children for a period of not more than one month.
11.The [mother] will give written notice to the [father] of travel dates, any flight numbers and accommodation not less than one month before commencement of travel.
12.For the [mother] to have leave to travel to Europe with the children without the giving of notice to the [father] in the event of a family emergency and the [father]’s time with the children to be responded [sic] for the time the [mother] and the children are away.
13.For the [father] to be restrained from travelling overseas with the children. Upon the [father] giving two months notice, the [mother]’s time with the children be suspended so the [father] can travel with the children in Australia for a period of not more than 2 weeks not more than twice per year.
14.For the [father] to be restrained from applying for [Italian] passports for the children.
22The father sought the following orders relating to travel:
9.The children’s passports be held by the Registrar at the Family Court and only to be released to either parent by Court order or the written consent of the other parent.
10.Each parent provide 2 months’ notice to the other parent if either parent propose [sic] to take the children for a holiday outside the State of Western Australia and the parent proposing the travel to provide the other parent:
a.An itinerary;
b.The date of departure;
c.The address and telephone number for each place at which they intend to stay; and
d.The date of return.
11.Each parent consent to any reasonable proposal for overseas travel and to notify the other parent of any objection within 7 days of notification of any travel proposal.
12.Any overseas travel is not to exceed a period of 4 weeks.
13.The non-travelling parent’s time with the children will be suspended for any period of time that the children are with the travelling parent.
14.The Australian Federal Police are requested remove the children’s names from the Family Law Watch List.
23There were no concerns expressed relating to the details of these proposals. The fundamental issue is that the mother considers the father a “flight risk” and is not prepared to agree to him taking the children overseas. The father does not consider the mother to be a “flight risk” but thinks it unfair if she is the only parent allowed to travel with the children. He also wishes the children to be able to see his family and appreciate their Italian heritage.
24There is no doubt the mother is not a flight risk. She owns property in Australia, has a very steady job here and a long term partner. She is respectful of court orders. It would be in the children’s interests for them to be able to visit relatives overseas, where both children were born and where they lived the first few years of their lives. The children also communicate with their Scottish cousins and are keen to visit them.
25On the other hand, the father does not own property in Australia. Although he has had work here, he has not had secure employment. His skills as a [tradesperson] would be in demand in many places, including his home country. He gave no evidence of having a long term partner. His many communications with the mother have understandably given rise to a strong apprehension that he might retain the children overseas. He is emotional and impetuous and full of contempt for the mother. At times this gets in the way of him appreciating what is in the best interests of the children. I cannot be satisfied that he is not a flight risk. While Italy is a party to the Hague Convention on the Civil Aspects of International Child Abduction, the mother is right in fearing that it would still take a long time to have the children returned to her if the father chose to keep them in Italy. The risk is not worth taking.
26I have set out below some of the father’s communications which, read with those set out above, persuade me it is not appropriate for the children to travel with the father overseas, even though I accept it would be good for them to see their relatives in Italy and to appreciate their Italian culture. The thinking revealed in these communications indicates that the father would be able to easily persuade himself that it is in the children’s interests for them to be kept away from the mother, despite what he may say to the contrary in these proceedings:
•“You are full if shit, like when you said that I’m gonna commit suicide. This time I’ll stress out the point with the judge, you’ve got dementia or becoming mentally unstable therefore you shouldn’t look after my kids. You’ll carry on sleeping with people and drinking but you won’t see my kids anymore. I’ll protect them from your strange behaviour. I’m not gonna drop it, I’ll investigate, you’re not gonna get away with it”;
•“You shouldn’t be a mother or the mother of my kids”;
•“If you’re not capable of looking after them properly, I want to look after them 100% of the time”;
•“I’ll look after my kids 100% of the time, go on your adventures and leave us alone”;
•“You’re just a pissed head, you can’t look after the kids: I’ll tell the judge, trust me. Plus your sexual behaviour. I’m gonna take the children from you scumbag”;
•“You’re arrogant, bad loser and one night stand woman, what pisses me the most is your the mother of my kids”;
•“I don’t want to see your sluty face on my property, next time I’ll punch you in the face, don’t provoke me anymore … You might not see my kids at all, cocksucker”;
•“Piece of shit … you are a fucking rat … Oh i forgot don’t worry about my kids when they are with me, when they are with me you are NOBODY, so fuck you”; and
•“You spend your time lieing and bullshitting yourself .. see all your affidavits that you’re losing grip on reality” (this sent the month before the trial).
27The father sent various messages to the mother during the time he had the children in Europe in 2014/15, when he unilaterally changed the arrangements, thereby ruining the mother’s plans for the children to spend time on a pre-booked weekend with her family. I am satisfied that the messages were designed to make the mother fear that the father was going to withhold the children from her indefinitely. For example, the father said “[The children] didn’t spend much time in [Europe] during those 7 years. I think [Mary] would be keen to learn [Italian] if we stayed here, [Ronald] is not that enthusiastic about it”.
28On 25 January 2015 the father wrote to the mother saying, inter alia, “I’m not gonna stay in Australia. I will go back to [Europe], I’ll buy you out from my house. I’ll start over again, the kids will enjoy it”.
29Earlier, in June 2014 the father told the mother in an email:
If i decide to leave australia i will live in [Europe], I’ve been neglecting the [Italian] side of my kids, i’m gonna fix this Back in europe we will have to see about custody, i would like to live with my kids, and you can fuck off with your boyfriend. You can start saving my 100000 pounds for the house or we will have to sell it. i will never live in UK anymore. i’m [Italian] not [Scottish]. Kids will have to travel from the two countries but if you re are else where, well we don’t give a fuck
30The father did not give the impression of being respectful of court orders – for example he knew he was breaching the VRO in coming to the mother’s home at Christmas 2016. He did not cross-examine the mother on her evidence that he was contemptuous of his obligations under the undertaking he signed. His arrogance and self-confessed inability to remain calm and unemotional do not give me the degree of confidence I would need to be satisfied that he should be able to travel overseas with the children.
31I am satisfied the mother’s proposals for travel are in the children’s best interests and I intend to make orders largely as she proposes. There is no need for the children’s passports to be held by the Court any longer, since the mother can be trusted to travel only in accordance with the orders I will make.
Injunction regarding father walking past the mother’s home
32The mother seeks an order that the parties “use the pathway at the back of their properties … when accompanied by the children only”.
33The mother said in her trial affidavit (affirmed in March 2018):
… The [mother]’s back garden as well as her kitchen, sitting room and conservatory are fully visible from a cut through along the back of her garden which is used by approximately 3 people per day. Soon after moving in the [father] began walking past the [mother]’s back garden up to 3 times per day. This is been very upsetting for the [mother] in view of their poor relationship and the history of lack of respect for boundaries. The [mother] emailed the [father] to ask him not to walk past and asked the police to suggest the same to him. She also approached the [father]’s friend when she was walking past with the [father] for the fourth time in two days and politely asked her not to walk past with the [father].
34At trial, the mother acknowledged that the father was now not walking past her home with any degree of regularity and she had seen him do so only once or twice in the last few months. She noted that she had only ever once walked past the father’s home, and that she had done so out of necessity. She was not challenged on her evidence that requiring the father to not walk past her property would add only a minute or so to any journey he might need to make.
35Although the father is to be commended for ceasing to walk past the mother’s home so regularly since she filed her trial affidavit, the fact remains he may elect to commence doing so again at his whim. While I accept that he has not behaved inappropriately when walking by, I can understand why his proximity is off putting to the mother given the history of communication between them. I accept that seeing him, or worrying about seeing him, will make the mother anxious and there would be reason for the children to be concerned too that it could lead to disputation between the parents. There is no evidence that the father would be inconvenienced by following a different route. I therefore propose to make the order sought by the mother.
Orders
36In arriving at my decision, I have not mentioned all of the considerations set out in s 66C of the Act, but I have considered each of them and taken all of them into account in arriving at my decision.
37I intend to make the following orders:
1.The mother [MS ABBEY] have sole parental responsibility for the children [MARY GUTHRIE], born [in] 2008 and [RONALD GUTHRIE], born [in] 2010 provided that the mother is not permitted to exercise that responsibility in order to:
(a)change the names of the children without the consent of the father, [MR GUTHRIE]; or
(b)make changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with the father.
2.The children’s passports be released to the mother and the mother to retain control of the passports.
3.The children’s names be removed from the Family Law Watch list.
4.Upon the mother giving two months’ written notice, the father’s time with the children be suspended to enable the mother to travel overseas or in Australia with the children for periods of not more than one month.
5.The mother give written notice to the father of travel dates, any flight numbers and accommodation not less than one month before commencement of travel.
6.The mother be at liberty to travel to Europe with the children without giving advance notice in the event of a family emergency and the father’s time with the children to be suspended for the time they are away.
7.The father be restrained and an injunction is hereby granted restraining him from removing the children from the Commonwealth of Australia. Upon the father giving two months’ notice, the mother’s time with the children be suspended so the father can travel with the children in Australia for periods of not more than two weeks not more than twice per year.
8.The father be restrained and an injunction is hereby granted restraining him from applying for [Italian] passports for the children.
9.The mother and the father be restrained and an injunction is hereby granted restraining them from using the pathway at the back of the home occupied by the other, save when accompanied by the children.
10.All outstanding applications and responses be otherwise dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
KM
ASSOCIATE28 JUNE 2018
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