Arthur and Joyner

[2015] FCWAM 197

JURISDICTION : MAGISTRATES COURT OF WESTERN AUSTRALIA – 150 TERRACE ROAD

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: ARTHUR and JOYNER [2015] FCWAM 197

CORAM: KAESER M

HEARD: 2 APRIL 2015

DELIVERED : 4 SEPTEMBER 2015

FILE NO/S: PTW 6362 of 2014

BETWEEN: MR ARTHUR

Applicant

AND

MS JOYNER
Respondent

Catchwords:

Interim child related proceedings; reasonable grounds to believe family violence occurred; presumption of equal shared parental responsibility not applicable; commencement of unsupervised time between father and children; extension to overnight time gradually.

Legislation:

Family Court Act 1997 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant: Ms A Christou

Respondent: Ms S Tovey

Solicitors:

Applicant: Leach Legal

Respondent: Dwyer Durack

Case(s) referred to in judgment(s):

Banks & Banks [2015] FamCAFC 36

Goode & Goode (2006) FLC 93-286

SCVG & KLD (2014) FLC 93‑582

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

History

1The mother and father in this matter have two children namely, [Child A] born [in] 2007 and [Child B] born [in] 2010.

2The father commenced these proceedings in November 2014. On 28 January 2015, orders were made for the filing of material. The matter was otherwise adjourned to an interim hearing before me. A number of subpoenas were issued, returnable to 12 March 2015.

3The parties attended a Case Assessment Conference with Family Consultant Collins on 20 February 2015. Whilst I have taken into account the entire content of the conference file note, I highlight the following in relation to the outstanding issues before the Court. The Family Consultant noted:

(a)There was no opportunity to reach agreement as the parties were too polarised in their proposals.

(b)Both parties accepted that [Child A] was having seizures preceded by bouts of shallow breathing. The father indicated he believed the child’s “attacks are triggered by emotional issues” and that these related to the way the mother behaved. [Child A] is currently almost eight years of age and the mother said she had not had a seizure since she was three and a-half years old. [Child A] has been seeing a clinical psychologist since October 2014 and attends every fortnight.

(c)No health concerns were raised in relation to [Child B].

4The Family Consultant referred to the police records produced pursuant to s 202K of the Family Court Act 1997 (WA) which revealed the mother had three traffic‑related convictions and three criminal-related convictions. The police incident reports indicated a family violence related offence where the mother was the victim and the father was the person of interest. That matter, however, did not proceed. The father had 14 convictions, nine of which were traffic related; the remaining five were criminal convictions.

5The mother had obtained an interim violence restraining order in 2011 which was subsequently dropped.

6The Family Consultant noted the current arrangements were that the children live with the mother and spend supervised time with the father once per week through the supervision agency, Safe Oasis Solutions. That supervised time commenced on 29 November 2014.

7Each party raised issues in relation to mental health and drug use. Whilst the mother denied she had been diagnosed with bipolar disorder (which was the father’s unqualified view), she accepted that she had engaged with a psychologist after separation and acknowledged that she had suffered from anxiety both before and after separation. She ceased taking anti-anxiety medication in November 2012.

8The father, for his part, acknowledged that he was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) in 2010. He was prescribed dexamphetamine medication for that condition. He also engaged with a psychologist after separation and he had seen him on some 36 occasions. He now is also engaged with a psychiatrist in relation to his ADHD.

9The father acknowledged he had used methamphetamines from 2010 to 2011. He said he had not used that drug since 2012. He also acknowledged that he has had a history of excessive use of alcohol and claimed that he ceased using alcohol only three weeks prior to the conference. He is attending alcohol counselling once a week. He raised similar concern about the mother’s use of illicit substances and alcohol. She acknowledges having “experimented” with methamphetamines once when with the father, but otherwise denies any other illicit drug use. She says that she has now limited her alcohol use to a reasonable level. The Consultant requested that both parties undergo drug urinalysis before 5.00 pm on the day of the Case Assessment Conference and the parties agreed to do so. The mother did not comply until 18 days later. The father complied within the required timeframe and he noted that he was taking dexamphetamine for his ADHD at the time of the testing.

10The father denied any physical violence during the relationship with the mother. He acknowledged that there had “been domestics” and that involved name-calling and putting each other down. The mother’s version was that she was subjected to verbal and psychological abuse with the father. She alleged:

He would scream at me and hit the side of the wall near my face. He would stand over me and would verbally abuse me.

11She also claimed that he “smashed my windscreen” and that she was fearful of him. The mother also claimed that the father had been physically, verbally and emotionally abusive to the children whilst they were in the relationship and post separation. The post separation allegations relate to claims that the children have told her that the father “smacks them very hard and allows his partner to smack them”. The Family Consultant noted that she:

Holds concern about the allegations raised by both parties and is concerned about both parties [sic] parenting capacity due to the allegations that have been raised.

In addition to this, the Consultant holds concerns around the father’s use of alcohol and the fact that he has only addressed this issue three weeks prior to the Case Assessment Conference taking place.

12The Family Consultant recommended the appointment of an Independent Children’s Lawyer.

13She also recommended that the parties enrol in various courses.

14On 5 March 2015 the Department for Child Protection and Family Support provided a report in answer to the Form 4 application filed by the mother on 10 December 2014. It did not refer to the later Form 4 filed by the father and a further report was then provided. The report dated 5 March 2015, however, noted:

The Department does not have a file in relation to this family.

On 10 October 2014 the mother made contact with the Department to report concerns about the father’s care of the children. These concerns were deemed vague and not meeting the threshold for departmental involvement.

The father reported separate concerns to the Department on 18 March 2014, 27 October 2014 and 19 November 2014. Those allegations also were too vague to involve the Department.

Most of the allegations raised in the Form 4 notice relate to parenting skills as opposed to specific child protection concerns. Nonetheless the Department met with the father on 4 March 2015 to discuss those concerns. On 4 March 2015 the Department spoke with the mother. The Department’s view was that there were no identifiable child protection concerns and there was no available evidence to support the view that the children are at risk of harm in either parent’s care.

The Department provided a view that it would be in the children’s best interest to have stable and predictable contact arrangements with both parents and their extended family, and for both parents to make a concerted effort not to denigrate each other, or allow other people to denigrate the other parent, in the presence of the children. The Department declined to be involved in any further way.

15The further report from the Department was dated 24 March 2015 and referred to the later Form 4 notice filed by the father. Nothing further arose from the later Form 4 report that had not already been dealt with in the earlier report.

Background to the proceedings

16At the interim hearing, a number of orders were made by consent, namely:

Until further order of the Court:

1.That until further order, the respondent mother have the children in her care when the children are not spending time with the applicant father.

2.The parents be at liberty to have telephone contact with the children at 4.00 pm on each Wednesday that the children are not in their care, with the parent who does not have the children in their care to place a telephone call to the mobile of the other parent, and with the other parent to facilitate that phone call, and the parents be restrained from preventing the children from engaging in telephone contact with each parent outside these times.

3.The respondent ensure that the applicant is fully informed, with prior written notice by text message, as to each and every appointment which the child [CHILD A] attends upon a counsellor/child psychologist, with the applicant father restrained by injunction from attending any such appointment.

4.Without admission as to need, the parents be restrained and in injunction be granted restraining the parents, their servants and agents from:

(a)Consuming alcohol in excess of the legal driving limit, or illicit drugs in the 24 hours prior to and during contact with the children, or allowing any third party to do so in their presence;

(b)Denigrating or maligning the other parent, their partners and/or extended family in the presence of or in the hearing of the children;

(c)Discussing the court proceedings or their wishes as to time spent with each parent in the presence of or hearing of the children; and

(d)Physically chastising the children or allowing any third party to do so.

5.Without admission as to need, the applicant father attend the following programs at his sole cost:

(a)Anglicare “Changing Tracks”;

(b)“1-2-3 Magic”;

(c)“Triple P” parenting program; and

(d)Anglicare “Mums & Dads Forever” Program.

6.Without admission as to need, the respondent mother attend the Anglicare “Mums & Dads Forever” program at her sole cost, and the respondent mother use her best endeavours to do so as soon as practicable.

7.In the case of urgency or emergency concerning the children, the parents will communicate by text message to their respective mobiles.

8.The parents each keep the other advised by text message as soon as practicable, in relation to any medical emergency involving the children, or chronic serious medical condition requiring ongoing treatment, and provide to the other parent the name of the hospital, treating medical or healthcare professional and/or medical or healthcare facility which provided treatment for the children.

9.The parents will communicate in respect of the children and parenting arrangements in relation to issues or significant events concerning the children, primarily by way of a communication book which is to accompany the children at each handover.

10.Both parties be at liberty to apply to relist this matter at short notice in the respect of the implementation of these orders.

17In addition to those orders which were pronounced by consent, the Court also made the following orders:

1.Pending judgment in this matter, the children [Child A] born [in] 2007 and [Child B] born [in] 2010, spend time with the Applicant, [Mr Arnold], each Sunday from 9.00 am to 5.00 pm, commencing 5 April 2015.

2.Pending judgment, handovers for the said children spending time with the Applicant be conducted by Safe Oasis Solutions at the Applicant’s costs [sic].

18The Court is required to determine the balance of the interim issues in dispute and provide reasons for those decisions. I also indicated at the end of the hearing that I would make orders for the appointment of an Independent Children’s Lawyer. I intend to do so.

Father’s case

19The father sought orders in terms of the minute of interim orders sought by applicant. They were in the following terms:

1.That the applicant father and respondent mother (together “the Parents”) shall have equal shared parental responsibility for the children.

2.That forthwith and until further order, the applicant father shall spend time with the children as follows:

(a)From 3.00 pm or the conclusion of school on Wednesday to 8.45 am or the commencement of school on Thursday, in each week; and

(b)Each alternate weekend, from 3.00 pm or the conclusion of school on Friday to 8.45 am or the commencement of school on Monday.

3.That until further order, the respondent mother shall have the children in her care at all other times.

4.The parenting arrangements in paragraphs 2 and 3 of these interim orders be suspended such that the children spend time with each of the Parents as follows:

(a)Easter 2015, with the applicant father from 3.00 pm or the conclusion of school on the Thursday immediately preceding Easter to 3.00 pm on Easter Saturday, and with the respondent mother from 3.00 pm on Easter Saturday to 5.00 pm on Easter Monday.

(b)2015/2016 Christmas/New Year school holiday period, on a week-about arrangement, with the applicant father from the conclusion of school on the last day of the school term to 3.00 pm on the second Sunday of the Christmas/New Year school holiday period and with the respondent mother from 3.00 pm on the second Sunday of the Christmas/New Year school holiday period to 3.00 pm on the third Sunday of the Christmas/New Year period, and alternating each week thereafter.

(c)Christmas 2015 as follows:

i. With the applicant father from 3.00 pm on 24 December 2015 to 11.00 am on 25 December 2015;

ii. With the respondent mother from 11.00 am to [sic] on 25 December 2015 to 3.00 pm on 26 December 2015; and

iii. With the applicant father 3.00 pm om [sic] 26 December 2015 to 3.00 pm on New Year’s Eve 31 December 2015.

(d)Such other times as agreed between the Parents in writing.

5.Unless otherwise stated in these orders, handover occurs such that the Parent who is to commence time with the children:

(a)collects the children from school if such day and time correspond with a school day; or

(b)if such day is not a school day, then handover occur at McDonalds [Suburb R].

6.The Parents be at liberty to have telephone contact with the children between 6.00 pm and 7.00 pm on each day that the children are not in their care, and the Parents will not prevent the children from engaging in telephone contact with each parent outside these times.

7.That the respondent ensures that the applicant is fully informed, with prior written notice, as to each and every appointment which the child [Child A] attends upon a counsellor/child psychologist, with the counsellor/child psychologist to be agreed between the parties within seven days of the making of these orders, and to be jointly appointed and with the child to attend sessions for as long as is recommended by the counsellor, with both Parents to share equally in the associated costs of same.

8.That until further order, [Ms Joyner] born [in] 1991, her servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the children [Child A] born [in] 2007 and [Child B] born [in] 2010, from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name [sic] of the said children of [sic] the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the said children’s name [ sic] on the Watch List until the Court orders its removal.

9.That the respondent mother, her servants and/or agents be restrained and an injunction be granted restraining the respondent mother from removing the children from:

(a)The Perth metropolitan region; and

(b)The State of Western Australia;

(c)The Commonwealth of Australia without the prior written consent of the applicant father or by order of this Honourable Court.

10.That the respondent mother be restrained from applying for passports for the children without the prior written consent of the applicant father or by order of this Honourable Court.

11.The Parents be restrained and an injunction be granted restraining the Parents, their servants and agents from using physical means to discipline the children.

12.Without admission as to need, the applicant father attend the following programs at his sole cost:

(a)Anglicare “Changing Tracks”;

(b)“1-2-3 Magic”;

(c)“Triple P” parenting program; and

(d)Anglicare “Mums & Dads Forever” Program.

13.Without admission as to need, the respondent mother attend the following programs at her sole cost:

(a)Anglicare “Mums & Dads Forever” program;

(b)“1-2-3 Magic”;

(c)“Triple P” parenting program; and

(d)Anglicare “Mums & Dads Forever” Program.

14.The Parents will communicate in respect of the children and parenting arrangements, in relation to any issues or significant events concerning the children, primary by way of a communication book which is to accompany the children at each handover.

15.In the case of urgency or emergency concerning the children, the Parents will communicate by telephone.

16.For the purpose of telephone contact with the children or in case of urgency or emergency, the Parents must keep each other informed at all times of mobile and landline telephone numbers at which they can be contacted, and must advise each other of changes to those mobile and landline telephone numbers at least two days prior to any change being made.

17.The Parents each keep the other advised, by telephone, as soon as practicable in relation to any medical emergency involving the children, or medical or healthcare condition requiring ongoing treatment and provide to the other Parent, the name of the hospital, treating medical or healthcare professional and/or medical or healthcare facility which provided treatment for the children.

18.That the applicant father be at liberty to apply to relist this matter at short notice in respect of the implementation of these orders.

20The father relied upon the following evidence:

(a)The affidavit of [Mr P] filed 10 March 2015;

(b)His own affidavit filed 6 March 2015;

(c)The affidavit of [Ms N] filed 6 March 2015; and

(d)A further affidavit filed 30 March 2015.

21At the hearing the father relied upon a further variation to his proposals by way of a handwritten minute of proposed orders. That document sought orders in the following terms:

1.That forthwith and until further order, the applicant father spend time with the children as follows:

(a)For a period of four weeks, each Sunday from 9.00 am to 5.00 pm; and

(b)For a period of four fortnights once the four-week period in paragraph 2(a) is completed, every second Saturday and Sunday from 9.00 am to 5.00 pm each day; and

(c)Once the 12 weeks pursuant to paragraphs 2(a) and 2(b) are completed,

i. Each alternate weekend, from 3.00 pm or the conclusion of school on Friday to 8.45 am or the commencement of school on Monday; and

ii. From 3.00 pm or the conclusion of school on Wednesday to 8.45 am or the commencement of school on Thursday in each week.

Mother’s case

22The mother filed an updated minute of interim parenting orders on 20 March 2015 and she sought the following orders:

1.The respondent be granted leave to amend her Form 1A interim application and for this purpose, seeks leave to file this updated interim minute of proposed parenting orders.

2.Paragraphs 12, 13, 14 and 15 of the applicant’s Form 1 initiating application filed 6 November 2014 be made by consent.

3.Paragraph 9 of the interim orders made 19 November 2014 remain in full force and effect.

4.In the alternative to the preceding paragraph, the applicant spend time with the children to be supervised by the paternal grandfather, [Mr Arnold Snr] and his wife, [Ms M], or such other person as may be agreed between the applicant and the respondent as follows:

(a)From 9.00 am to 5.00 pm every Sunday;

(b)From 4.00 pm to 6.00 pm on each of the children’s birthdays; and

(c)From 4.00 pm to 6.00 pm on the applicant’s birthday.

5.For the purpose of handover in the preceding paragraph, if the supervision is undertaken by the paternal grandfather and his wife, the paternal grandfather and/or his wife shall:

(a)collect the children from the home of the respondent mother; and

(b)return the children to the home of the respondent mother.

6.The applicant father be restrained and an injunction be granted restraining him from:

(c)[sic] consuming alcohol or illicit drugs in the 24 hours prior to and during his contact with the children, or allowing any third party to do so in their presence;

(d)[sic] denigrating or maligning the respondent mother, her partner or her extended family in the presence of or in the hearing of the children;

(e)[sic] discussing the court proceedings or their wishes as to their time spent with each parent in the presence of or hearing of the children; and

(f)[sic] physically chastising the children or allowing any third party to do so.

7.An Independent Children’s Lawyer be appointed forthwith in the usual terms.

8.The costs of the Independent Children’s Lawyer shall be determined upon each party filing a financial statement.

9.A single expert be appointed, with the specific terms of reference to be agreed between the parties, to produce a report for the court with recommendations in relation to the children’s time with the respondent.

10.Paragraphs 1 to 5 of the interim orders made 19 November 2014 be discharged.

11.The applicant forthwith do all acts and sign all documents necessary to obtain a passport [sic] for the children, and deliver the signed application forms to the respondent.

12.The time for compliance with paragraph 6 of the interim orders made 19 November 2014 be extended to such time as forthwith [sic] upon the respondent receiving the children’s passports.

13.The applicant be at liberty to take the children on a holiday to New Zealand departing in January 2016 for a period of no longer than three weeks and for this purpose, the applicant be at liberty to obtain from the registry the children’s passports.

14.No later than 21 days before the proposed departure date for the holiday in the preceding paragraph the respondent shall provide the applicant with a detailed itinerary, including details of flights and accommodation for the duration of the trip.

15.The applicant shall be entitled to “make up” time with the children for any time missed as a result of the proposed holiday in paragraph 13.

16.Upon return to Perth from the holiday in paragraph 13, the respondent shall forthwith return the passports to the registry of the Family Court where they shall be held and not released to either party without the written consent of the other party or order of this Honourable Court.

17.The matter otherwise be adjourned generally pending the production of a report by the single expert witness.

23The mother relied upon the following evidence:

(a)The affidavit of [Ms Arnold] filed 20 March 2015;

(b)The affidavit of [Mr O] filed 20 March 2015;

(c)The affidavit of [Ms J] filed 20 March 2015; and

(d)Her own affidavit filed 20 March 2015.

24At the hearing before me, the mother did not press for orders in relation to travel, passports or parental responsibility. The issues to be determined by the Court therefore:

(a)whether the mother could take the children out of the Perth metropolitan area within a range of approximately four hours of Perth;

(b)whether the father’s time needed to be supervised or not;

25By the conclusion of the hearing, I was satisfied the supervision was no longer necessary, but the extent of any ongoing time between the children and the father still needs to be resolved. Safe Oasis Solutions provided a report dated 24 March 2015 which was generally positive in terms of the interaction between the father and the children. Whilst I have taken into account the entire content of the report I note the following:

The report is based on six supervised visits from 15 February 2015 until 22 March 2015.

I note that an earlier report dated 17 February 2015 covered the period from 29 November 2014 until 8 February 2015.

Transitions and greetings were positive. [Ms J] and/or her partner [Mr O] were supportive and encouraged the children to have fun. [Mr Arnold] and his partner [Ms N] welcomed them warmly and the children generally appeared eager to spend time with them.

Physical contact was natural, age appropriate and relevant to the moment. The children generally appeared secure and relaxed in the father’s company and the father’s partner, [Ms N], appeared to have a warm and secure relationship with both children.

The conversation flowed easily between the children, the father and his partner.

The children engaged in a variety of child-focussed activities with the father and his family members. They were relaxed and secure.

The father also attended to the children’s safety and general wellbeing. He provided any minor injuries with comfort and reassurance.

The children appeared relaxed and secure to leave the father’s care and return to the mother’s care where they were warmly welcomed and helped into the car.

26As a result of these very positive observations the service supported the transition with this family if it proceeded to unsupervised contact visits. Based primarily on that evidence, but also upon other evidence, I was of the view at the conclusion of the hearing that supervision was no longer required.

The relevant law

27The Full Court recently provided some guidance in relation to what appear to be very strict and comprehensive guidelines provided by the Full Court in the decision of Goode & Goode (2006) FLC 93-286. The Full Court in Banks & Banks [2015] FamCAFC 36 at [23] set out what the Full Court said in Goode (supra) at [80,903] concerning the way in which an interim parenting application should be determined:

It is useful to recall what the Full Court said in Goode and Goode (2006) FLC93-286:

81 In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.

82 In an interim case that would involve the following:

(a)identifying the competing proposals of the parties;

(b)identifying the issues in dispute in the interim hearing;

(c)identifying any agreed or uncontested relevant facts;

(d)considering the matters in s 66CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

(e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

(f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

(g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

(h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parent, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

(i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

(j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

(k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

28The Full Court in Banks (supra) noted that it is the making of an order for equal shared parental responsibility that triggers the requirement to consider making orders for equal time or substantial and significant time. The Full Court in Banks (supra) went on to say at [48] that:

It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial [emphasis in original]. The fact such disputes are commonly dealt with in overcrowded Court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.

[49] Although the primary Judge discussed all the potentially relevant factors in her ex tempore reasons, that luxury will not always be available. Furthermore, there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93‑582.

[50] When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it would be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non‑determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.

29I have no doubt the children should have a meaningful relationship with both of their parents. I am not satisfied that there is any longer a need to protect either child from physical or psychological harm from being in the father’s care. The children are too young to have any of their views be the subject of any significant weight. The children clearly have a strong and loving relationship with the mother who has been their primary caregiver. I am, however, satisfied that the children have a good relationship with the father, especially given the observations in the supervised contact report. The father has paid relatively little by way of child support for the children. He has incurred significant costs in relation to the supervision of his time with the children.

30I do not consider there will be any significant adverse effects on the children from the change from supervision to unsupervised time with the father. I also consider that some further extension of the father’s time would be appropriate and would not adversely impact the children. I have no difficulty with the mother’s capacity to care for the children. I also have no difficulty with the father’s capacity to care for the children in daytime periods and including on overnight occasions in future.

Conclusions

31As I mentioned, I made orders in relation to unsupervised time immediately at the end of the hearing. I was satisfied and remain satisfied that that was an appropriate order. I am not concerned about any ongoing risks that would require continued supervision either formally or by relatives or friends. I remain confident therefore in that decision and now must determine whether that order should continue or whether overnight time is proper having regard to all of the evidence.

32Both parties have supportive partners who appear to behave well around the children.

33Prior to October 2014, the children spent alternate weekends in the father’s care from, generally, after school Friday to 6.00 pm on Sundays, together with the week‑about time during school holiday periods.

34The parties live in the southern suburbs of Perth.

35Each party has raised some concerns about the other party’s behaviour and parenting. These have been canvassed and I find that they are not of sufficient concern to either require supervision of the father’s time or to dramatically increase the father’s time with the children beyond what was happening prior to October 2014. The mother raised concerns about the children’s comments to her at about that period and that led to a cessation of the father’s time.

36Those concerns have also been canvassed and I am confident that the parties understand that such behaviour towards the children and comments to them are inappropriate. They are hurtful and do nothing but potentially traumatise the children.

37I am of the view that such behaviour will not occur in the future.

38On balance, the children should (in time) return to the pattern of time they were enjoying prior to October 2014. The orders that I put in place at the interim hearing have now been in place for some time.

39The mother’s proposals are unduly restrictive and do not accord with the children’s best interests. The father’s proposals provide an appropriate timeframe for the extension of the children’s time with him and for the reintroduction of overnight time in due course. Given the “one day per week regime” has been in place since the hearing, it is proper to move to the next step as proposed in the father’s minute.

40The presumption of equal shared parental responsibility does not apply given that I find there are reasonable grounds to believe that there has been family violence in this relationship.

41I do not intend to order equal shared parental responsibility on an interim basis and therefore am not obliged to consider equal time or substantial and significant time.

42I do however consider that an intervening mid-week time with the father would be appropriate (once the overnight times commence) and would otherwise lessen the gap between times the children will see the father.

43In my view, one overnight occasion per fortnight is reasonable in all the circumstances. The father has addressed a number of the concerns raised by the mother in the orders made at the end of the hearing.

44The issue regarding travel out of the Perth metropolitan area can be disposed of quickly. There is insufficient evidence to support an injunction against the mother. The mother is the primary caregiver to these children. She has family and support persons outside of the Perth metropolitan area and, in my view, there should be no injunction restraining her from taking the children outside of that area.

Ancillary issues

45I decline to make orders in relation to Easter given that this matter will be before the Court again before that event occurs.

46The orders made in relation to handovers should continue, noting that the arrangements will soon move to handovers mostly occurring at school and thereby reducing the cost to the father.

47I am not satisfied that these parties could effectively meet at a public place such as that proposed by the father.

Christmas

48The father makes proposals in relation to Christmas. The mother seeks no such orders. In my view, the father’s proposals are appropriate.

Orders

1.The children be independently represented at the further hearing of these proceedings and the Director – Client Services, Legal Aid Western Australia (“LAWA”) be requested to arrange such representation.

2.Within 7 days from the date of this order, the parties or their lawyers, provide copies of all documents filed in these proceedings to the Director – Client Services, LAWA except the documents the Client Administration Officer is to provide pursuant to these orders.

3.Within 7 days from the date of this order, each party file a Form 13 Financial Statement and provide a copy to the Director – Client Services, LAWA.

4.The Client Administration Officer cause a copy of this order to be forwarded to the Director – Client Services, LAWA together with copies of the following documents:

(a)a copy of the Family Consultant’s Memorandum dated 6 March 2015.

(b)a copy of the DCPFS report dated 5 March 2015;

(c)a copy of all orders made in these proceedings.

5.The question of contribution by the parties to the costs of the Independent Children’s Lawyer be reserved.

6.The children, [Child A] born [in] 2007 and [Child B] born [in] 2010, spend time with the father:

(a)For a period of four fortnights commencing the first fortnight after the delivery of these reasons, on every second Saturday and Sunday from 9.00 am to 5.00 pm each day; and

(b)Once the above period is completed:

i.Each alternate weekend, from 3.00 pm or the conclusion of school on Friday to 8.45 am or the commencement of school on Monday; and

ii.From 3.00 pm or the conclusion of school on Wednesday to 8.45 am or the commencement of school on Thursday in each intervening week;

(c)During Christmas 2015 as follows:

i.from 3.00 pm on 24 December 2015 to 11.00 am on 25 December 2015; and

ii.3.00 pm on 26 December 2015 to 3.00 pm on New Year’s Eve 31 December 2015.

7.Until further order of the Court, the children live with the mother.

8.The interim applications before the Court are otherwise dismissed.

I certify that the preceding [48] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Secretary