BAIRD and LANCASTER
[2019] FCWA 40
•22 FEBRUARY 2019
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: BAIRD and LANCASTER [2019] FCWA 40
CORAM: TYSON J
HEARD: 14, 15, 16, 17 and 18 JANUARY 2019
DELIVERED : 22 FEBRUARY 2019
FILE NO/S: PTW 4432 of 2018
BETWEEN: MS BAIRD
Applicant
AND
MR LANCASTER
Respondent
Catchwords:
FAMILY LAW - CHILDREN - Child is 1 year old - Parents separated when child was 5 months of age - Recovery Order granted to return child to the mother - Child has been living with the mother since that time - Child and mother have been living interstate pursuant to interim orders made in November 2018 - Father seeks the child return to Western Australia - Mother seeks the child remain interstate - Allegations of family violence - Independent Children's Lawyer - Best interests - Relocation - Turns on own facts
Legislation:
Family Court Act 1997 (WA)
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Ms Tysoe |
| Respondent | : | Self Represented Litigant |
| Independent Children's Lawyer | : | ICL |
Solicitors:
| Applicant | : | Holden Barlow |
| Respondent | : | Self Represented Litigant |
| Independent Children's Lawyer | : | Legal Aid WA |
Case(s) referred to in decision(s):
Banks & Banks (2015) FLC 93-637
Bondelmonte & Bondelmonte (2016) 259 CLR 662
Re F – Litigants in Person Guidelines (2001) FLC 93-072
Stott & Holgar [2017] FamCAFC 152
Zahawi & Rayne [2016] FamCAFC 90
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
1 These proceedings concern [J], who is 12 months of age. [Ms Baird] and [Mr Lancaster] are J’s parents. The parties met online in 2016 when [the mother] was [living in] [State A] and [the father] was in [Regional Town A, Western Australia]. The parties knew little of one another before they began living together in December 2016 in Regional Town A.
2 J was born [in] 2018. The parties separated on 10 June 2018. J remained in the father’s care until 14 June 2018 when the mother obtained a recovery order. J has continued to live with the mother, initially in a refuge and following interim orders in November 2018, they have lived in State A with [the maternal grandparents]. Since J was returned to the mother’s care, he has only spent time with the father on 25 and 26 July 2018, and on the weekend prior to trial supervised by [a private children’s contact service].[1]
[1] On 12 and 13 January 2019 – refer to Exhibit 1 – report from [a private children’s contact service].
3 As a result of a multitude of allegations by each parent, an Independent Children’s Lawyer (“ICL”) has been appointed for J. The ICL described the case as complex, involving a very young child, parents whom live on opposite sides of the country, a mother who wishes to remain in State A, a father who wishes to remain in Regional Town A and each parent presenting with vulnerabilities. That was an apt description. While the decision the Court is asked to make must be that which is in J’s best interests, in this case, that involves minimising risk to a young vulnerable boy.
4 At the commencement of the trial, the mother sought J remain living [in] State A and spend supervised time with the father. The father sought J live with him in Regional Town A and spend unsupervised time with the mother. By the conclusion of the trial, having heard all of the evidence, the ICL proposed, in summary, that J live with his mother in State A and spend unsupervised time with his father on a gradually increasing basis.
5 Each parent then modified their position and as a result the scope of issues in dispute narrowed considerably. The parties agreed that:
•J live with the mother and spend time with the father, on a gradually increasing basis, initially during the day only and then progress to overnight. It is agreed J spend:
•up to 5 hours on five consecutive days, on no less than four block periods, for the first 12 months;
•thereafter for two non-consecutive overnight periods, from 10 am on day one until 4 pm on day two, within a period of five days, for a minimum of four block periods for 12 months; and
•thereafter for up to three consecutive nights, from 10 am on day one until 4 pm on day four, within a period of five days, for a minimum of four block periods until J is 5 years of age.
•If the father relocates within 100 km of where J lives in State A, the father spend time as set out, with the parties to attend family dispute resolution to discuss any variation.
•The father provide notice to the mother if he intends to spend time with J.
•The father be restrained from spending time with J in the presence of any person other than the paternal grandparents, unless agreed with the mother.
•The father continue to participate in the “Man Up Program” or such other therapeutic support program as agreed for two years, with the father to provide written evidence of his engagement with the program at six monthly intervals.
•The mother continue to engage with a therapeutic counsellor as recommended by her treating general practitioner and provide written reports of her compliance with the recommendations of her treating general practitioner, at six monthly intervals.
•If the father continues to reside in a different state to J, then the father have Facetime and/or Skype communication on no less than three occasions each week.
•The parents establish a designated email account for communication regarding J.
•Each parent advise the other of any significant health issues suffered by J and any medication to be administered.
•A mutual injunction on a without admission as to need basis, restraining both parties from consuming alcohol to excess or illicit substances when J is in their care or 24 hours prior thereto.
6 What was not agreed and what the Court was therefore required to determine was:
1.Should the parties have equal shared parental responsibility or should the mother have sole parental responsibility?
2.Where should J live?
3.Should the mother be restrained by an injunction in terms of where J lives and restricting her bringing J into contact with people other than the maternal grandparents, without the father’s consent?
4.Should J’s time with the father be supervised?
5.Where should handovers occur and should they be supervised?
6.Should an injunction be made restraining the father from removing J from the mother’s care?
7.What amount of notice should the father provide of his intention to spend time with J?
8.Should the father should be permitted to have [Ms M] present when spending time with J, without the mother’s consent?
THE PROPOSALS OF THE PARTIES
7 The ICL handed up a minute setting out the orders he sought, after completion of the evidence. He proposes the mother have sole parental responsibility on the basis she contact the father in writing with her proposed decision about all major long term issues concerning J, she consider the father’s views and they attempt to reach a joint decision, failing which, the mother make the final decision. The ICL proposes J live with the mother in State A, with the mother being restrained from changing J’s ordinary place of residence from the maternal grandparents’ home until she secures government public housing or J commences year 1, whichever is the earliest. He proposes J spend unsupervised time with the father and handovers occur at the central [City A] railway station.
8 The mother initially sought orders in terms of her minute filed 26 November 2018. However, by the conclusion of the trial, she agreed with the orders proposed by the ICL, with two exceptions. She seeks that J’s time with the father be supervised for 12 months, before it moves to be unsupervised. If the Court orders the father’s time be unsupervised, she seeks that handovers be supervised. She seeks an injunction restraining the father from removing J from her care or any third party in whose care J is placed.
9 The father initially sought orders in terms of his minute handed up on day 1 of the trial. By the conclusion of the trial, he too amended his proposals. He seeks that the parties have equal shared parental responsibility. He proposes they use Family Wizard as a means of communication. He seeks J live in Perth. He seeks Ms M spend time with J in his presence without the mother’s consent. He seeks an injunction restraining the mother from allowing J to have contact with anyone apart from the maternal grandparents without his prior written consent. He seeks Facetime or Skype communication with J irrespective of where he lives. He does not support the injunction sought by the ICL that J should continue to live at the maternal grandparents’ home. He says if he lives in the same state as J he should provide 48 hours’ notice of his intention to spend time with J. He proposes handovers occur at a police station.
BACKGROUND
10 The mother was born [in] 1982 and is 36 years of age. The mother is a full time homemaker and parent. She lives with her parents in [Town B], State A.
11 The mother has been the victim of a number of traumatic events. When she was 12 years of age, she was sexually assaulted by her 14 year old brother. The mother’s parents said it was up to her whether to report the matter to the police. Ms Baird did not wish to do so. She asked for a lock on her bedroom door, which her parents installed. Neither Ms Baird nor her brother received any counselling.
12 When the mother was 19 years old, she was raped. The mother reported the incident to the police, who were unable to press charges as they were unable to identify the perpetrator.
13 The father was born [in] 1983 and is 35 years of age. He is a driver and works on a full-time basis, in accordance with a rotating roster. He lives in Regional Town A.
14 The father previously lived in [State C]. Between 2002 and 2015, the father had extensive involvement with the State C police, who were repeatedly called as a result of the father behaving in a physically and verbally abusive manner towards his former partners, as well as his parents. The father’s parents obtained a restraining order for their protection against the father on 24 March 2014. At least one of the father’s former partners was also protected by a restraining order against him.
15 The father currently has an outstanding warrant for his arrest in State C. The father’s criminal record includes:
•27 March 2014: hindering police; aggravated assault against a child or spouse.
•6 September 2006: driving in a reckless or dangerous manner.
•6 September 2006: failing to comply with a bail agreement.
•4 July 2006: common assault on person other than family member.
16 The father moved to Regional Town A in around 2014 or 2015 and has lived there since. The father’s parents remain in State C.
17 The mother moved to Regional Town A in December 2016, following the parties meeting online. Their relationship progressed rapidly.
18 The mother says from February 2017 the father began behaving in a physically, verbally and emotionally abusive manner towards her, which he denies.
19 In July 2017 the paternal grandfather visited and stayed with the parties.
20 In September 2017 the mother travelled to [capital city, State C] and spent time with the paternal grandparents.
21 In October 2017 the mother commenced counselling at the Regional Town A [specialist women’s centre].[2] She voiced concerns she was spiralling into depression. The mother declined medication because she had felt uncomfortable when she was previously taking prescribed medication. The mother preferred to pursue counselling, which she then did on a regular basis.
[2] Refer to Exhibit 4 – files note from the specialist women’s centre, produced by the subpoena issued by the ICL.
22 In [early] 2018 the maternal grandparents visited the parties in Regional Town A where they remained until [soon] after the birth of J.
23 The father accidentally suffocated J while in hospital. The mother and J were discharged [soon after]. The mother continued to care for J, while the father resumed working as a driver.
24 In early 2018 the parties commenced counselling at the Regional Town A specialist women’s centre, with each raising concerns that their arguing would affect J.[3] The counsellor reported from her observations, the mother and father were “very good parents to their son together as a couple as well as individually” and said “[J] was happy and content with each of his parents”.[4]
[3] Refer to Exhibit 28 – report from Regional Town A specialist women’s centre.
[4] Refer to Exhibit 28.
25 On 27 February 2018 the mother disclosed to her counsellor that the father slammed the door on her hand to prevent her from leaving, before he eventually took her to hospital. She acknowledged to snapping, shouting and hollering at the father and that both of them have used J, by threatening to take him away from the other parent.
26 Between 5 to 10 March 2018 the paternal grandparents visited and stayed with the parties.
27 In March 2018 the father alleges the mother assaulted him while holding J on the stairs, which she denies.
28 In March 2018 the mother told her counsellor she had felt like hanging herself, but after looking at J, she was unable to do so. She reported the father was pushing her buttons and accusing her of abandoning J.[5]
[5] Refer to Exhibit 4 – annexure 11B.
29 In April 2018 the father admitted to having shouted and behaved in an abusive manner towards the mother.[6] The mother said she was experiencing “dark thoughts, revengeful thoughts” but during cross-examination, the mother said she could not recall using those words.[7]
[6] Refer to Exhibit 4 – annexure 12B.
[7] Refer to Exhibit 4 – annexure 13B.
30 Between 5 to 10 April 2018 Ms M visited and stayed with the parties. The father alleged the mother became violent and aggressive towards Ms M’s child [P], which the mother denies.
31 In May 2018 the mother resumed working on a part-time basis. J was then cared for by the father or by a babysitter.
32 In June 2018 the parties discussed moving interstate. The mother wanted to be closer to her family. She also raised concerns about the costs of accessing specialist medical care for J which was not available in Regional Town A.[8] J was diagnosed with a flat head, stiff muscles on the left hand side of his neck and a floppy mid-section which required medical attention, physiotherapy as well as attendance upon specialists in Perth.
[8] Refer to Exhibit 4 – annexure 15B.
33 On 10 June 2018 the parties separated. They argued and the mother left. The father followed the mother. On 11 June 2018 the mother moved into a refuge following an altercation with the father. At the father’s request she returned to care for J. When she did so, the father demanded her car keys, which she threw at him, fearful of getting too close. The father told the mother she would get nothing and if she left and she would never see J again. While the father denied saying that, I prefer the mother’s evidence, which was consistent with her reports to the refuge and counsellor.
34 The father tried to coax the mother to return, including following her in a car with J. The mother eventually made a report to the police, who escorted her to remove some belongings. Police issued the father with a 24 hour police order. J was asleep at the time, and the mother agreed to leave J in his care.
35 The mother then disclosed other instances of physical violence that she had not previously reported, including lying to the hospital about her injury that had been caused by the father. She disclosed the father had held her by the throat on several occasions during arguments, including one occasion when she almost blacked out. She admitted to having thrown items at the father and that she had tried to push him down the stairs.[9]
[9] Refer to Exhibit 4 – annexure 16B.
36 The father sold the mother’s car, leaving her without any transport. His explanation for doing so demonstrated a lack of insight into the impact on the mother, who then was living in a remote location without any means of transport. I consider his actions in this regard fall within the definition of family violence.
37 The mother reported the father asked her to drop the police charges and he would then permit her to see J. She described feeling intimidated and bullied by the father when she attended their home on 19 June 2018. She alleged he tried to physically block her from leaving, removed her phone and the police were then called.
38 On 12 June 2018 the father attended the specialist women’s centre and said that Ms Baird was a good mother, he wanted to return J to her but he was afraid she would take J interstate, where he would be unable to see his son.[10] The father was subsequently referred to Mission Australia for ongoing counselling.
[10] Refer to Exhibit 4.
39 On 15 June 2018 the mother obtained a violence restraining order against the father on an interim basis. It was subsequently resolved by a conduct agreement on 17 July 2018.
40 On 13 June 2018 the mother commenced proceedings and obtained a recovery order, to which I have already referred.
41 On 14 June 2018 J was returned to the mother’s care. That same day the mother attended the family home to remove her belongings and pets. A further altercation occurred between the parties. The police then became involved again.
42 On 20 June 2018 the mother agreed to the father seeing J at a friend’s home. Later that day the father was served with the VRO, protecting both the mother and J.
43 On 13 July 2018 the father took an overdose of Fluoxetine. He told the hospital he took the medication as a result of his son being taken away and following another loss of job. He reported feeling depressed and not actively suicidal but “can’t be sure he might not try”.[11] The mother viewed this as an attempted suicide, which the father denied. The emergency notes recorded the father had taken an intentional overdose, he was considered a suicide risk and that the father agreed to a safety plan including a referral to attend upon a psychiatrist.[12] The father did not disclose his hospitalisation to the mother.
[11] Refer to Exhibit 7.
[12] Refer to Exhibit; 7 & 8 - [Regional Town A hospital] emergency department notes dated 13 & 14 July 2018.
44 On 17 July 2018 J was removed from the VRO.
45 In July 2018 the parties agreed for J to spend time with the father supervised by a mutual friend, [Mr T]. The father took J to hospital where he was admitted and treated for eczema. The police arrived and facilitated J returning to the mother’s care.
46 On 26 July 2018 the mother agreed to J seeing the father at hospital. The father then did not see or spend time with J until January 2019, when two supervised visits were conducted by [a private children’s contact service]. The father repeatedly made requests to spend time with J supervised by agencies, by friends and family, through J’s day care and others, which the mother declined.
47 In August 2018 the father was unable to obtain information from the hospital about J and was advised the mother had removed him as a next of kin. The mother says she did so, only to ensure her and J’s location at the refuge remained confidential.
48 On 14 August 2018 orders were made for the parties to enrol with a supervised contact centre. Supervised contact did not occur because there were no available facilities in the [region].
49 On 29 August 2018 the father sought to spend time with J on Father’s Day. The mother said that was not possible as she and J were flying to Perth for a medical appointment at [Hospital A]. J returned to Regional Town A on Sunday afternoon of Father’s Day.
50 On 31 August 2018 the father contacted Hospital A and was informed that no information was to be released about J’s health. Since separation the father has been participating in the Man Up program.[13]
[13] Refer to Exhibit 5 - correspondence from Man Up dated 9 January 2019 from the Man Up coordinator .
51 Following an Interim Hearing in November 2017, the mother was permitted to relocate J to live in State A.
THE LAW
52 The proceedings accordingly fall to be determined pursuant to the Family Court Act1997 (WA). The Court’s power is to make such parenting orders as it thinks proper. In determining what parenting orders are to be made, J’s best interests are the paramount but not the only consideration. The interests of the parties may appropriately be taken into account, provided that the child’s interests remain paramount.
53 Section 70A provides for a presumption that it is in the best interests of children for their parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent or other relevant adult has engaged in abuse of the children, or family violence.
54 The phrase “reasonable grounds to believe” is important. For the statutory presumption to be inapplicable it is not necessary for abuse or family violence to be proven; it is sufficient for there to be reasonable grounds to believe that a parent has engaged in behaviour of that nature.
55 Even if the statutory presumption applies, it may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the children for their parents to have equal shared parental responsibility.
56 If an order for equal shared parental responsibility is to be made, I am required to consider whether J spending equal time with each parent is in his best interests and whether such an arrangement would be reasonably practicable. If so, I am then required to consider making such an order.
57 Against the background of an order for equal shared parental responsibility being made, if I do not make an order for J to spend equal time with each parent I am required to consider whether spending substantial and significant time (as that term is defined in the Act) with each parent would be in his best interests and reasonably practicable. If so, I am required to consider making such an order.
58 In determining whether it is reasonably practicable for the child to spend equal time, or substantial and significant time, with each parent I am required by s 89AA(5) of the Act to have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the Court considers relevant.
59 In a parenting case where the proposals of one party would involve the relocation of the child, there is no presumption against an order being made which permits relocation, nor is there a presumption in favour of a parent with whom the child predominantly lives at the time of or prior to the application. The parent wishing to move does not need to demonstrate “compelling” reasons to justify the proposed move, and the child’s best interests must be weighed and balanced with the proposed relocating parent’s right to freedom of movement. A Court should not lightly interfere with that right of freedom of movement, save and except where it is contrary to the best interests of the child.
60 While the parent proposing to relocate is not required to justify the desire to move (beyond the Court being satisfied that the application is bone fide and not motivated by some ulterior consideration) it is appropriate for the Court to have, as it does in this case, evidence as to the benefits which that parent says would flow from the relocation. The welfare of the parents is to be considered and balanced with the best interests of the child; that exercise necessarily includes an examination of the likely benefits to the parent of the proposed move and the likely detriments of an inability to move.
61 As the High Court observed in Bondelmonte & Bondelmonte (2016) 259 CLR 662, the making of a parenting order involves the exercise of judicial discretion, and the assessment of the considerations set out in the legislation by reference to the circumstances of the case involves value judgements in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of the children.
62 In determining what parenting orders will be in the best interests of the child, the Court is required to consider the matters set out in s 66C of the Act. While those matters are divided in the legislation into “primary” and “additional” considerations, the primary considerations do not necessarily outweigh any combination of the additional considerations.
63 As in all civil litigation, the issues that are joined between the parties will dictate which s 66C factors are relevant. The requirement to “consider” each factor does not mean that each factor must be expressly discussed in a judgment where the factor in question has no sufficient relevance in the particular circumstances of the individual case to displace the determinative significance of factors specifically discussed.[14]
[14] Banks & Banks (2015) FLC 93-637.
64 The Court must also be guided by the objects of Pt 5 of the Act and the principles underlying those objects, as set out in s 66(1) and (2). I note also the additional object of Pt 5 stated in s 66(4). The Court is not in any sense bound by the proposals of the parties, subject to the requirements of procedural fairness and the parties being given notice of the possibility of an order being made, unless the making of such an order is obviously open on the known material.[15] Nevertheless, the proposals of the parties must be clearly identified, and submissions made by them as to the orders which should be made if orders are not made in terms of their proposals must be considered.
[15] Stott & Holgar [2017] FamCAFC 152 at [26].
65 It is necessary for me to give careful consideration to the proposals of the parties and to determine the arrangements which are likely to promote J’s best interests. I am mindful that the best interests of the child are the paramount consideration, but it is not the only consideration. It is necessary for me to consider all proposals or, subject to procedural fairness, to formulate others which I consider to be in the children's best interests.
66 In Zahawi & Rayne [2016] FamCAFC 90 the Full Court said at [47]:
All applications for parenting orders before the Court involve a situation that, axiomatically, is not in the children's best interests. What is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents' proposals embraced in competing applications involve, again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children's best interests. Concomitantly, Gummow and Callinan JJ said in U v U (2002) 211 CLR 238:
…The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.
THE EVIDENCE AT TRIAL
67 The mother relied upon her affidavit and financial statement filed 14 December 2018, together with the affidavit of [Ms Baird Snr] filed 14 December 2018. The father relied upon his affidavit filed 11 December 2018, his financial statement filed 22 November 2018 and the affidavits of Ms M and [Mr Lancaster Snr] filed 12 December 2018. Each of the parties and their witnesses were cross-examined.
68 By consent, a number of documents were accepted into evidence as exhibits. The parties agreed the Court should take into evidence the Notices of Abuse filed by the father on 8 August 2018 and by the mother on 12 June 2018, the response from the Department dated 5 November 2018, together with the Case Assessment Conference memorandum dated 10 September 2018.
THE TRIAL
69 The father was previously legally represented. By the time of trial, he was representing himself. I spent some time at the commencement of the hearing explaining various matters so as to ensure that he understood the process. I explained the principles which the Court is required to give effect to in conducting child-related proceedings. I explained the importance of cross-examination if he was seeking to challenge factual statements which could properly be regarded as relevant to the matter remaining in dispute.
70 On day one of the trial, after leave was granted to inspect the material produced by the State C police, the ICL expressed the view the father should obtain independent legal advice in relation to the subpoenaed material. The matter was stood down and Legal Aid arranged for a duty lawyer to provide advice to the father.
71 The father was aware of the law. He was well prepared and had clearly spent significant time preparing for the trial. He asked a number of relevant questions and conducted himself appropriately throughout the trial. I acknowledge he, and indeed the mother found parts of the trial difficult and emotional. However, the father was able to fully participate in the proceedings.
72 I am aware of the guidelines regarding the manner in which a judicial officer should deal with unrepresented litigants.[16] I applied those guidelines during the course of the proceedings, and am comfortable that the trial was fair.
WHAT ARE MY OBSERVATIONS OF THE PARTIES AND THEIR WITNESSES?
[16] See Re: F – Litigants in Person Guidelines (2001) FLC 93-072 at [209] to [253].
73 The mother was generally direct and frank in giving her evidence. I consider that she attempted to answer questions honestly and to the best of her ability. The mother clearly loves J and wants the best for him. She has endeavoured to meet all of J’s many needs, which have been time consuming and demanding including medical appointments in Regional Town A and Perth, in difficult circumstances while living in a refuge, with limited financial means and no car.
74 The mother holds a very poor view of the father. She struggled to find anything positive to say about him. She does not trust the father and she clearly dislikes him. The mother described in some detail the allegations of family violence against the father. She appeared genuine and authentic in her disclosures. Her presentation suggested she was afraid of the father: she avoided looking him in the eye, she was often in tears and one was visibly upset when recounting instances when the father had been physically and verbally abusive towards her. The mother considers J is not safe in the father’s care she is fearful of the father refusing to return J to her, as a means of control, in accordance with the previous threats he has made.
75 There were aspects of the mother’s evidence that caused me some concerns. For example, she swore an affidavit in support of the interim proceedings in which she alleged the father had made up claims and then took J to hospital. I do not accept that was correct. The evidence from the hospital confirmed J was seriously unwell resulting in him being admitted for three days. While the mother accepted it was in J’s best interests to have a relationship with the father, she was unable to identify any positive attributes of the father. Given her poor view of the father, I was not convinced that she was likely to willingly promote his relationship with J.
76 Ms Baird Snr is Ms Baird’s mother and J’s maternal grandmother. She was balanced and measured in her evidence. To her credit, she was strongly supportive of the mother. She was frank in her evidence, acknowledging that with the benefit of hindsight, she could have done more and better handled events when Ms Baird was assaulted by her brother. She was candid in acknowledging the mother’s vulnerabilities, suggesting the mother had a rose-coloured view of the world. She said the mother had made poor choices in both her relationships and her decision to move to Regional Town A when she barely knew Mr Lancaster. She was not seriously challenged in cross-examination. I accept her evidence.
77 The father attempted to answer the questions that were asked of him honestly and directly. He too clearly loves J and wants the best for him. The father was not frank or candid in relation to his significant involvement with the State C police. I consider the father minimised these events and demonstrated a lack of any insight or empathy for his family and former partners, who clearly felt unsafe and at risk of harm from him.
78 The father acknowledged his convictions. However, he attempted to minimise and discount the seriousness of them. The father demonstrated limited insight and ownership of his behaviour. He deposed to either having no recollection of some events involving the police, or simply made blanket denials. The father appeared to have a selective memory in this regard. He was quick to dismiss allegations, because charges were not pressed or convictions were not recorded. I do not accept the father’s evidence that he never behaved in a violent or aggressive manner towards former partners, which is inconsistent with the numerous police reports, over an extended period of time.
79 Similarly, while the father acknowledged that he had behaved badly towards his parents, he was dismissive of the details of his violent conduct, which caused his parents to be fearful for their safety.
80 The father did not disclose to the mother his self-harm and subsequent hospitalisation. During cross-examination, the father accepted that his mental health was relevant, but claimed there was no need for him to tell the mother because there was “12 days” between the hospitalisation and his visit with J. I consider that the father minimised his mental health difficulties.
81 The father denies physically assaulting or hurting the mother. I did not accept his evidence in this regard and prefer the mother’s evidence.
82 Mr Lancaster articulated the changes he had made since participating in Man Up. I accept Mr Lancaster’s father’s evidence of improvements in Mr Lancaster’s behaviour. However, in my view, Mr Lancaster still has work to do. When asked what he could do to rebuild the mother’s trust, the father continued to blame her and was unable to identify what steps he could take. The father was reluctant to give the mother any credit for the positive parenting she had provided to J.
83 Mr Lancaster’s father was direct and frank in his evidence. To his credit, Mr Lancaster Snr was strongly supportive of his son. However, he did not minimise the father’s behaviour. He described the father as previously being a very angry young man, whose behaviour became intolerable and resulted in him and his wife calling the police. He said the father had significant issues with women, he struggled to manage his emotions when his relationships ended and he did not treat women well in the past. I agree.
84 While Mr Lancaster Snr claimed he could not recall the father hitting him, holding him by the throat and pushing him against the wall, he accepted their altercations were physical. I accept that the father did so, consistent with the contemporaneous police reports he made.
85 Mr Lancaster Snr gave his evidence seemingly without filter. He was blunt in his description of the father and he is acutely aware of his son’s shortcomings. I have no hesitation accepting his evidence.
86 Ms M gave her evidence directly and honestly. She was not seriously challenged. She has spent only limited time in the presence of the mother and J. She is strongly supportive of the father.
THE PRIMARY CONSIDERATIONS
Is there a benefit to J having a meaningful relationship with both of his parents?
87 Each parent and the ICL agree it is in J’s best interests to have a meaningful relationship with each of his parents. I agree. The evidence supports that finding. J has a meaningful relationship with the mother. She has been his primary caregiver and she continues to fulfil that role. It is to his benefit that continues.
88 The father was involved in J’s care prior to separation. Since then, the father has been unable to spend as much time with J as he would have hoped. The supervision report describes J’s interactions with the father positively. I consider it to be in J’s best interests to have a meaningful relationship with the father. I find their relationship is established and it will develop with each period of time they spend together.
Does J need to be protected from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence?
Notices of Abuse and involvement by the Department of Communities
89 Each parent has made a number of allegations against the other. the father’s Notice of Abuse filed 8 August 2018 claimed:
•He had been falsely accused of perpetrating family violence.
•The mother had “abandoned” J when she left the family home, then obtained a recovery order, which she was using to prevent any contact between the father and J.
•The mother was disinterested in J, had neglected his health needs and had abandoned J on more than 1 occasion prior to separation.
90 The mother’s Notice of Abuse filed 12 June 2018 claimed:
•She was the victim of family violence including physical assaults, stalking, deprivation of liberty, verbal and financial abuse and threats including in the presence of J.
•She described in some detail the father’s assaults, including the father kicking the back of her legs, putting his hands around her neck and pushing her back into the kitchen bench when she was pregnant, grabbing her by the neck and pushing against a wall, fridge and/or pinning her down.
• The father slammed her hand in a door. When the mother attended hospital, the father accompanied her holding J, telling her if the police came he would remove J. As a result the mother told the hospital the injury was her fault.
•The father repeatedly threatened the mother that if she left, he would take J and she would not see him again.
•At separation on 10 June 2018, the father would not allow her to take J. The father locked the house and gate, to prevent her from leaving, resulting in the mother climbing over the fence. The father then followed her in a car and said “if you keep walking you will never see [J] again”. He accused her of calling the police and demanded to see her phone. The mother walked into town where the father found her, chased her and wrestled her to the ground.
•When the police returned with the mother the home was locked and the father did not allow them entry, resulting in the police breaking into the property.
•The following day the father contacted the mother saying he needed her to babysit. She left work and collected J at which time the father insisted she leave her car. The father told her she would get nothing because she involved the police.
91 On 12 June 2018 the Department advised it had been contacted by the parties’ counselling service. The Department was told the father wanted to return J to his mother’s care, but he also wanted orders to be made for him to spend time with J.
92 The Department subsequently advised they closed their file on 23 August 2018, detailing the following involvement with the family:
•On 12 September 2018 the father contacted the Department raising concerns for J in the mother’s care. The Department informed him that his previous complaint about the Department’s decision to end its involvement was upheld and would not take any further action on the basis there was no evidence to warrant further involvement.
•On 25 September 2018 the father made a police report alleging that 6 months earlier the mother had pushed him while he was standing at the top of the stairs holding J. When the father was questioned for the delay in filing a report he stated he was “fearful of retribution from the suspect and now believe that she had to be held to account”. The Department’s file noted concerns around the father’s level of persistence and fixation in attempting to discredit the mother.
•The Department telephoned the mother to discuss her remaining vigilant. The Department were concerned that the father’s behaviour was highly unpredictable and he was persistent in finding new avenues to involve various agencies and make reports. The mother reported she wanted to leave Regional Town A because she felt unsafe. She said the current proceedings were preventing her from leaving. The Department confirmed they had no ongoing role, as they had assessed J was safe in the mother’s care.
•On 28 September 2018 the specialist women’s centre and Mission Australia requested a meeting with the Department due to safety concerns for their staff, upon the father learning that J was no longer in Regional Town A. Both organisations understood the mother left under the Department’s direction, which they denied. The Department indicated they had not facilitated the mother leaving the refuge but confirmed they had discussed the father’s repeated reports and the importance of her being vigilant for her own safety. Staff said while the father had not made any direct threats, they were concerned based upon his behaviour, that he may act unpredictably and blame staff for the mother leaving with J, which may result in an escalation of behaviour. The staff advised they had reported their concerns to the police, to ensure their staff’s safety and requested a welfare check to ensure J’s well-being.
Case Assessment Conference
93 On 10 September 2018 the parties attended a Case Assessment Conference.
94 The mother confirmed attending counselling and the ongoing support she was then receiving from the refuge. The mother reported she had been diagnosed with depression when she was around 20 years of age, but it was well managed and she was not prescribed medication. The father considered the mother’s anxiety and depression escalated following J’s birth and her mental health “went downhill”.
95 The father confirmed attending counselling with Mission Australia. He acknowledged the service reported his mental health was an issue as he spoke of self-harming, but claimed he did not have “serious thoughts of self-harm”. The father said he was emotional after being separated from J. He confirmed he had been prescribed antidepressant medication which he had taken for around a month and he had attended upon a psychiatrist for a mental health assessment.
96 Neither party raised current concerns about the other parent using illicit substances. The mother claimed the father consumed alcohol to excess and at times would drink 24 cans or an entire bottle of Jack Daniels. The father said he consumed between one to six cans and considered it would be rare to drink more than that.
97 The mother told the Consultant the parties frequently argued and she typically left the home to avoid an escalation. She alleged the father frequently threatened to take J and that he behaved in a controlling manner including restricting funds. The father denied the allegations. He claimed he had never taken J from her and repeated the mother had pushed him while holding J. He acknowledged they argued in relation to spending and that the mother left the home at times.
98 The father told the Consultant J was at risk of neglect in the mother’s care as she was impatient, she did not interact with him and that the father was the person who primarily attended to J’s needs. He questioned whether the mother was ensuring J attended his medical appointments and suggested J was not meeting his developmental milestones.
99 The mother denied neglecting J’s health and explained she had attended appointments with the child health nurse, a GP for his vaccinations and paediatric appointments, including a specialist appointment in relation to his flat head. She confirmed J had been attending regular physiotherapy appointments and she was doing the recommended exercises with him.
100 The Consultant said her primary concern was the allegations of family violence, together with each parent’s experiences of depression and the father’s alleged alcohol consumption. She considered it possible that the mother left without J due to the father’s controlling and coercive behaviour, because she felt powerless to take J with her. The Consultant said had such behaviour occurred, it was likely to have impacted upon the mother’s mental health.
101 Correspondence from Mission Australia identified the father’s mental health as a concern including thoughts of self-harm. The Consultant raised concerns about the limited duration when the father took prescribed medication and recommended each parent attend counselling to assist with their mental health and complete the Circle of Security program.
102 The Consultant noted the mother described the father as a good parent and considered he had the capacity to care for J. She recommended the father spend regular time with J for initially 2 to 3 hours, 3 times a week.
103 The Consultant concluded:
While the parents’ narratives differ in relation to the existence of family violence in the relationship the allegations are nonetheless concerning as they present possible risks to the safety and well-being of a young and vulnerable child. It seems the mother has acted protectively by seeking accommodation in a refuge and is attending counselling to address her experience of family violence during the relationship. The Consultant recommends the father attend an intake assessment interview to assess his suitability to participate in a behaviour change program and he continues to consult with a general practitioner regarding management of his mental health is attention to both issues will be a future benefit to the child in a cooperative parenting relationship.
Police Involvement
104 When the father filed his Notice, he said there had not been any police involvement between the parties. In the father’s Case Information Affidavit, he said he did not have a criminal record. Both statements were untrue.
105 The ICL issued a subpoena to State C Police which was produced on day 1 of trial. The father was extensively cross-examined on those documents, which revealed a lengthy and concerning history of interactions between the father and the police.
106 Specifically:
(a)The father remains the subject of an active warrant dated 1 April 2015 for possession of an object with intent to cause harm and contravention of an intervention order. He has pending charges relating to failure to comply with a bail agreement in contravention of an intervention order for offences alleged in March 2014. No further details were provided as a result of the ongoing criminal proceedings.[17]
[17] Refer to Exhibit 6 - correspondence from State C police to the Family Court of Western Australia dated, 10 January 2019.
(b)The father had been the subject of multiple complaints by former partners in State C over an extended period of time. The police reports revealed that
•In March 2003, Mr Lancaster grabbed the victim around her throat in a headlock, lifted her up and dragged her about 10 meters. The victim subsequently contacted police and advised she did not wish to press charges. The police described Mr Lancaster as being very aggressive to police and the victim’s mother. Mr Lancaster was interviewed and charged. He admitted to pushing the victim but denied grabbing her around the neck or placing her in headlock.[18]
[18] Refer to Exhibit 7 - police apprehension report from State C police for the father, reported 11 March 2003.
•The victim claimed Mr Lancaster had assaulted her on several other occasions.[19]
[19] Refer to Exhibit 11 - detailed occurrence report from State C police, reported 14 May 2003.
(c)There were multiple other claims, including that the father had:
•Followed the victim into a shop on 13 May 2003 where he assaulted the victim, removed her phone when she tried to contact the police and yelled at her, saying “the games are not over, they have just begun”. A witnesses told police he thought Mr Lancaster was going to hit the victim.[20]
[20] Refer to Exhibit 12 - police apprehension report from State C police, reported 14 May 2003.
•Chased the victim in his car on 30 May 2004, during which he was tailgating, driving dangerously, continually attempting to pull in front of the path of her vehicle to make her stop and eventually pulling his vehicle across all downhill lanes, forcing the victim to break suddenly and take evasive action. The victim then drove to the police station, while still being pursued by Mr Lancaster. Mr Lancaster was arrested and interviewed, during which time he removed his belt and made a veiled attempt at wrapping it around his neck. When Mr Lancaster was restrained by police, he head-butted a wall which resulted in the police terminating the interview and charging him. Mr Lancaster fainted and was transferred for medical attention, where he needed to be physically restrained with shackles and medicated.[21]
[21] Refer to Exhibit 15 - detailed occurrence report from State C police dated 30 May 2004.
•On 10 September 2004 Mr Lancaster attended his former partner’s home, drove his car towards her, saying “I’ll run you over” forcing her to move out of the way to avoid injury. He then physically forced the victim into his car, while carrying a 15 cm kitchen knife and chased the victim’s mother.[22]
[22] Refer to Exhibit 18 - detailed occurrence report from State C police dated 10 September 2004.
•On 22 June 2012 Mr Lancaster’s former partner reported Mr Lancaster entered her home without permission, initiated an argument, threw flowers on the floor and broke a necklace he had given to her. Mr Lancaster refused to leave when asked. When the victim attempted to leave, Mr Lancaster prevented her from doing so by standing in the doorway. When she left through the back door, he followed her and pursued her in a car while she walked on the footpath. Mr Lancaster told the police the victim had given him mixed messages, and she arranged to meet him the next day for lunch. He said she was due for her period, and he wondered whether that had something to do with the report.[23]
[23] Refer to Exhibit 19 - detailed occurrence report from State C police dated 23 June 2012.
•On 1 March 2013 Mr Lancaster’s former partner reported he had chased her and threatened her resulting her locking herself in the bathroom and escaping through a window. When the police arrived she accused Mr Lancaster of being aggressive, she did not wish to take any action but wanted him to leave. Mr Lancaster denied being aggressive and accused his former partner of attacking him earlier in the night. He showed police some small puncture wounds on his left arm. Mr Lancaster’s partner told police he had inflicted the stab wounds on himself earlier in the week. Mr Lancaster was charged with trespass. He got into his car and refused to leave. The police described Mr Lancaster as deliberately uncooperative and considered his behaviour was intimidating towards the victim. Mr Lancaster subsequently attended the police station on 8 March 2013 accusing his former partner of stabbing him. He demanded she be arrested. Mr Lancaster’s former partner told police that on the day before the assault, they had attended counselling where Mr Lancaster admitted that he often self-harmed, rolled up his sleeves and showed the stab wounds to the counsellor advising they had been self-inflicted. The police later spoke with the counsellor who confirmed that Mr Lancaster admitted to regularly self-harming and had showed him several wounds on his arms.[24]
[24] Refer to Exhibit 21 - detailed occurrence report from State C police dated 8 March 2013.
•On 17 March 2014 Mr Lancaster’s former partner reported to the police that her relationship with Mr Lancaster was over due to his drinking and anger. She claimed Mr Lancaster became enraged and assaulted her, grabbing her upper arms, shaking her violently while yelling in her face and accusing her of cheating. He grabbed her car and house keys and deadlocked the house, preventing her from leaving. He removed her mobile telephone and detained her at the property that evening. The following day Mr Lancaster grabbed her by the shirt front with his left fist and formed a clenched right fist. When she tried to leave, he blocked her path and refused to move when asked. She pushed him away. When she was able to leave, Mr Lancaster refused to move his car which was parked behind her and began filming her on his mobile phone.
•The victim reported to police she was fearful of her personal safety especially when Mr Lancaster had been drinking. She described him as controlling and not allowing her to wear dresses because that would be “flirting”.[25] On 22 March 2014 the victim requested police assistance retrieve her belongings. The police arrived and located Mr Lancaster who was then arrested for aggravated assault of the victim. Mr Lancaster was directed to get out of the [vehicle]. He then turned his mobile telephone on and began arguing with the police, before he eventually complied and was handcuffed. Mr Lancaster struggled and continued to be non-compliant with requests of the police. The police reported the video recordings seized from Mr Lancaster’s phone on 18 March 2014 showed him recording the victim in distress, who was asking him why he would not let her take her car. The police said the video depicted Mr Lancaster as “antagonistic and controlling”.[26]
[25] Refer to Exhibit 22 - detailed occurrence report from State C police dated 17 – 18 March 2014.
[26] Refer to Exhibit 23 - detailed occurrence report from State C police dated 22 March 2004.
•On 21 April 2014 a former partner reported that between 1 - 21 April 2014 she had received 136 phone calls which she believed were from Mr Lancaster. On 5 occasions she spoke with the caller and recognised his voice and asked him to cease. The victim reported she felt harassed and intimidated.[27]
•On 21 September 2015 Mr Lancaster’s former partner contacted police seeking advice. She advised they had met online and Mr Lancaster had become controlling and jealous. She then separated from him and remained living in State C. Mr Lancaster threatened to quit his job and return to State C, stating if she changed her address he would find her and he had friends that would do so. She reported Mr Lancaster told her “he knows the law to (sic) well and can get away with it.” She advised she had blocked him on her phone, but she was still receiving text messages.[28]
(d)There were repeated reports made by the father’s parents to the police as a result of him acting aggressively, including:
•Physically assaulting his father, damaging his parents’ property including punching and kicking holes in walls and head-butting walls in April 2003 and June 2004.[29] [30]
•Mr Lancaster was accused of punching his father in the face, grabbing him and throwing him across a bed causing him to fall heavily on 9 April 2003. The police reported Mr Lancaster’s father had a large lump to the left lower side of his face and bruising to his right eye from another assault the previous day. Mr Lancaster’s father said he did not want specific action taken, but wanted the incident noted as there had been ongoing problems for about three months.[31]
•Mr Lancaster held his father by the throat, pushed him into a wall, demanded money, and damaged the hallway. Mr Lancaster was described as very aggressive.[32]
•Mr Lancaster attended his mother’s work and demanded money. He was abusive towards her. When another staff member intervened, he became abusive towards her and left when police arrived.[33]
[27] Refer to Exhibit 24 - detailed occurrence report from State C police dated 21 April 2014.
[28] Refer to Exhibit 25 - detailed occurrence report from State C police dated 21 September 2015.
[29] Refer to Exhibit 16 – police apprehension report from State C police, dated 15 June 2004.
[30] Refer to Exhibit 10 - detailed occurrence report from State C police, dated 9 April 2003.
[31] Refer to Exhibit 10 - detailed occurrence report from State C police, dated 9 April 2003.
[32] Refer to Exhibit 14 - detailed occurrence report from State C police, dated 19 May 2004.
[33] Refer to Exhibit 17 - detailed occurrence report from State C police, dated 14 July 2004.
107 The father’s national police history check was in evidence. The father said he had no knowledge of the outstanding summons and warrant. He said he pled guilty to aggravated assault but considered he had been wrongly charged. He acknowledged he pled guilty in 2006 to driving in a reckless or dangerous manner. He said he had no recollection of assaulting any former partner but he did not dispute the record of convictions.
108 While the father repeatedly either denied the allegations or said he had no recollection, I did not consider his evidence to be reliable or credible in this regard. Contrary to the father’s evidence, I am satisfied that he has behaved in a violent, aggressive and intimidating manner towards the mother. I preferred the mother’s evidence in this regard, which I found to be compelling. She presented as genuinely fearful of the father and continued to appear affected by his acts of violence against her.
109 I accept the father is not proud of his criminal history and he is ashamed of how he has behaved in the past towards his parents. However, I was not satisfied that the father demonstrated either an awareness, nor insight into the seriousness of the complaints that were raised against him.
110 In my view, the father was quick to simply deny the allegations or refer to the fact that he had not been convicted of offences arising from those events. The details of the incidents were alarming and consistent with many of the allegations that the mother has directed at the father, including that he has prevented her from leaving their home, he has followed her, removed her mobile telephone and grabbed her by the throat.
111 The maternal grandmother described Mr Lancaster as a bully and intimidating. That is consistent with the descriptions provided to the police from the father’s victims. It is also corroborated by the police’s description of the father of being abusive and aggressive.[34]
[34] Refer to Exhibits 13, 23 & 15.
112 Mr Lancaster Snr acknowledged the father had perpetrated family violence against his former partners, that he had been an angry young man who was quick to temper and had significant difficulties regulating his emotions. I agree with that description, which was corroborated by the State C police records.
113 I am readily satisfied that the father has behaved in a manner that falls within the definition of family violence and he has committed acts of violence against the mother, despite his denials.
Alcohol and Drug Use
114 The father is required to do drug urine analysis testing as part of his employment. In evidence was his drug and breath alcohol screen test results dated 25 September 2018 which were negative.[35] The father confirmed he was required to undergo regular testing with his work including at the commencement of each shift and he has never returned a positive reading.
[35] Refer to Exhibit 27 from Sonic Health Plus.
115 It appears in the past the father has had difficulties with his level of consumption, which has led to him acting aggressively, given the police reports. The father denied that he drank to excess, as claimed by the mother. The information from Mission Australia indicated that the father had consumed large amounts of alcohol, which he denied. They recorded the father reported that he could drink a 750ml bottle of whisky on his own. The father suggested that was when he was younger, which I do not accept and prefer the mother’s evidence that the father would drink up to a bottle of spirits on his own at times. I consider that the father minimised the amounts of alcohol he consumed, as well as the difficulties which alcohol has caused in his life.
116 To his credit, the father is continuing to work and is regularly tested through his employment. He maintains a current drivers’ license. On the basis that the father complies with the order made by consent not to consume alcohol to excess prior to or when J is in his care, then I am satisfied J is not at risk of harm.
Neglect
117 While the father previously suggested that J was at risk of harm in the mother’s care, that was not seriously pursued at trial. The available evidence does not support a finding that the mother has either neglected or failed to appropriately attend to J’s medical needs. J has been engaged with a number of health professionals since birth. J is highly visible in the community and the Court was not directed to any evidence to support a finding that any third party, apart from the father, was concerned about the mother’s care. The Department found J was well cared for by the mother. In any event, given the father’s revised proposals that J should live with the mother, he is clearly satisfied that she has the ability to attend to his needs.
ADDITIONAL CONSIDERATIONS
118 I will now address the additional considerations, which are relevant in this matter.
119 J is now 12 months of age. Neither party suggested he was at an age where he was capable of articulating a view, nor that any weight should be attached to such views, if known. Neither party suggested that there were any particular features of J’s maturity, sex, lifestyle or background nor of his parents, that were relevant. J is not an Aboriginal child. There is not a current family violence order in place. I have already referred to the conduct agreement.
What is the nature of J’s relationship with each of his parents and his extended family?
120 I have already considered the nature of J’s relationship with each of his parents. I am satisfied that J has a warm and loving relationship with the mother, who has been his primary caregiver.
121 I am satisfied that J has previously enjoyed a warm and loving relationship with the father, however since separation, they have spent limited time together. I accept the father has consistently and repeatedly sought to spend time with his son. While the father has had less time with J that he would have liked, the supervision report suggests that they have maintained a positive relationship.
122 I am satisfied J also has a warm and loving relationship with his maternal grandparents, with whom he has lived since relocating to State A. I accept J also has a positive relationship with his paternal grandparents, despite the limited time they have spent together.
To what extent have the parties taken the opportunity to be part of J’s life and to maintain J?
123 The mother has made most of the decisions for J since he has been in her care. The father has participated to the extent he has been able to. He has voiced concerns at the limited information he has been able to obtain about J’s health.
124 The father is currently assessed to pay child support. According to the mother she received around $10 shortly prior to trial and the last assessment from the Child Support Agency indicated the father was no longer working. The father said he was not assessed to pay “much” by way of child support and thought he paid around $100 a month. The current assessment was not in evidence.
125 The father indicated he would contact the Agency, to advise he was currently earning between $1,500 - $2,200 net each week, to ensure that his assessment was accurate. The father has met the recent costs of supervision. Both parties incurred costs travelling to Perth, for the trial and to facilitate J spending time with the father.
What are the likely effects of any changes in J’s circumstances?
126 This is an important consideration. If J remains in State A, he will continue to live with the mother and spend time with the father when the father is able to travel. He will not be able to spend as much time with the father, which he could enjoy if they lived in the same city. J will be able to continue to spend substantial time with his maternal grandparents.
127 If J is required to return to Western Australia, the father proposes J live in Perth, and the father will move there. The mother said in cross-examination she would live in Perth only if ordered to do so.
128 The father’s initial proposal was for J to live in Regional Town A and spend alternate weekends with the mother, assuming she returned to Regional Town A. He proposed to engage an au pair or day care to care for J while he continues to work 60 – 80 hours each week. The father indicated his parents would come to assist with J’s care initially and he was considering reducing his work. I consider it was entirely appropriate for the father to abandon that application, which was not supported by the evidence. It is to his credit that having heard the evidence, he modified his proposals, which in my view, demonstrated insight into his son’s needs and his attachment to his mother.
129 The mother wishes to remain in State A, where she has the support of her family and friends. That is understandable and her reasons for that position are sound. The father made it clear he does not wish to reside in State A. The father said he would reconsider moving to State A, after the outcome of these proceedings, if that meant he could spend more regular time with J.
130 The father considers Regional Town A as his home and it was J’s home until they left. It is where he lives and works. He accepts neither party have extended family in Regional Town A. The father is prepared to relocate to Perth, if the Court made orders for J to live in Perth.
131 The father says he does not wish to live in State A and considers he would struggle to obtain work, however his evidence was equivocal on this point. Initially the father said he would struggle to work outside of Regional Town A, as a familiarity with local road conditions is usually required. He then indicated he may have work opportunities in Perth, despite acknowledging that he was not familiar with the roads. The father conceded the parties had discussed moving to [State B] prior to separation and that he intended to work when they moved. I was not convinced that the father’s ability to work outside of Regional Town A was as limited as that which he deposed.
132 The mother did not suggest that she would remain in State A if J was required to live in Perth. The mother has no home, no car and limited financial means to support herself and J in Perth. She is worried about having contact with the father, and the father knowing where she lives. She has no family or support in Perth. She has not lived in Perth previously.
133 The mother is presently living with her parents who are providing her with accommodation, food and payment of utilities. That enables her to apply her government benefits for herself and J. They also provide moral and physical support, including use of their car and babysitting.
134 The mother will be upset and unhappy if she is required to return to Western Australia. The father will be upset and unhappy if J is permitted to remain in State A. He wants J to return to Western Australia, where he will have better access and opportunity to spend regular and frequent time with him.
135 I recognise that each parent’s happiness is a factor to be considered in circumstances where their happiness may impact upon J’s happiness. However, that consideration is of less significance than my assessment of what is in the best interests of J and his well-being.
136 The father conceded there was an absence of any evidence about where either party would live and what J’s circumstances would be, if the Court ordered J to live in Perth. He conceded neither of them had any family in Perth, nor had they lived in Perth previously. The father said he would help the mother pay for a bond, to obtain accommodation in Perth. The mother has been on the wait list to obtain public housing in Western Australia but has not been offered accommodation to date.
What are the practical difficulties and expense of J spending time with the father?
137 There are significant practical difficulties and expense if J continues to live in State A and the father remains in Regional Town A. There was no evidence of the costs of a return airfare, nor any additional expenses such as accommodation, car hire and the like if the father travelled to State A.
138 If the Court orders that the father’s time be supervised, as sought by the mother, there would also be an additional cost. Again, there was no evidence as to the costs of supervision, the availability of supervision agencies nor the wait lists for such services, apart from the general enquiries which the mother had made. Similarly, the Court had no evidence about the availability, cost and location of any supervised handover services in State A.
139 The father conceded if he remained in Regional Town A, he was able to afford the costs of travel to State A to spend time with J. He works on a full-time basis, as a driver. The father works on a rolling 6 day roster, working between 12 to 15 hours each shift. The shifts and hours vary. He earns between $1,500 to $2,200 net each week, depending on the hours he works. As the father is employed on a casual basis, if he does not work, he is not paid.
140 The mother is in receipt of government benefits and receives currently around $1,100 per fortnight. She has applied for government housing in State A. It was unclear whether she was on the wait list for allocation of housing, or whether she needed to advise the relevant authority of the outcome of these proceedings, before she would be placed on the list. There was no evidence as to when and where the mother may be offered public housing. The mother expects to be eligible for rent assistance if she obtains private accommodation, at the rate of $160 per week. The mother hopes to study in the future and possibly obtain casual employment, subject to being able to make arrangements for J’s care.
141 The father is assessed and pays only a modest amount of child support at this time. The father did not dispute that the mother was unable to assist financially in terms of him travelling to State A, to spend time with J.
142 In the event that both parties and J live in Perth, then subject to where each party actually lives, there will not be the same practical difficulties or expense in J spending time with the father. Similarly, if the father relocates to State A, then the same practical difficulties and expense will not be incurred, depending on where each party lives.
What is the capacity of the parents to provide for J’s needs, including his emotional and intellectual needs?
143 I am satisfied that the mother has the capacity to provide for J’s physical and practical needs. While the father raised some historical concerns about the mother’s capacity to meet J’s needs, in particular his medical needs, he conceded that J was meeting his developmental milestones and that his skin condition has improved.
144 I would have concerns about the mother’s capacity to continue to provide for J’s needs, at this time, if she were to live independently from her parents. It appeared the mother was less than realistic about her capacity to afford to do so, and continue to meet J’s needs while maintaining her own counselling.
145 I consider the maternal grandparents provide an important and ongoing source of support for the mother and it is to J’s benefit that continues. I do not accept the father’s submission that J is at risk of harm remaining in their household. While the father holds concerns about the manner in which the maternal grandparents dealt with their daughter’s assault when she was a child, the maternal grandmother conceded, they could have handled matters better. Her concession demonstrated insight. Her ongoing financial assistance to enable the mother to continue to attend upon her psychologist also demonstrated insight into the importance of the mother continuing to manage her mental health.
146 The father claimed the maternal grandfather has acted inappropriately towards the mother, when she was giving birth and on another occasion when she was pregnant. Both Ms Baird and her mother were emphatic, clear and consistent in their denials, which I accept. I prefer their evidence over the father’s in this regard.
147 I hold concerns about the mother’s capacity to meet J’s emotional needs, and specifically to promote his relationship with the father, given her poor view of him. Having heard her evidence, I am not satisfied that the mother will do anything more than comply with the orders, for J to spend time with the father.
148 The father’s capacity to provide for J’s needs is less clear, as he has had only limited opportunity to do so. The children’s contact service report found the father appropriately attended to J’s physical needs, and was loving and affectionate in his interactions.
149 I hold concerns about the father’s capacity to provide for J’s emotional needs for a number of reasons. Firstly, the father’s proposals up until late in the trial, were that J should be removed from the mother’s care and live with him. I consider those proposals demonstrated a lack of insight into his son’s needs and spoke more of the father’s desire, than arrangements that were in J’s best interests. Secondly, the father’s history demonstrates that he has struggled to manage and regulate his emotions, particularly when his relationships have ended. Aspects of the father’s evidence caused me concern that he still has much to learn in terms of taking responsibility for his past behaviour towards his former partners, family and Ms Baird. Thirdly, the father struggled to find anything positive to say about the mother. He was reluctant to give the mother any credit for J’s presentation. He has been highly critical of her parenting in the past, which was not supported by the evidence.
150 I consider it is important that the father continues to engage with Man Up or such other therapeutic counselling, to continue to gain insight and to assist him to regulate his emotions, which he has agreed to do. I would have concerns if the father re-partnered and resumed behaving in the manner which the mother complains of and which is consistent with police reports made by former partners and family members. If J were exposed to the father committing acts of family violence, that would put J at risk of harm. The father, to his credit, has agreed to only spend time with J on his own or with his parents, unless agreed with the mother.
151 Both parents have agreed to injunctions on a without admission basis not to consume alcohol to excess or illicit substances prior to or when J is in their care. While each parent denies the others allegations in terms of their alcohol use, I consider such an order is in J’s best interests. While the father denied that his alcohol consumption was a problem in the parties’ relationship, the police and counselling information suggest he has had difficulties with alcohol in the past.
152 I am satisfied that the mother is currently capable of providing for J’s needs, provided she continues to access the counselling she is currently receiving to assist in managing her health. It would appear the conflictual and dysfunctional relationship between the parties has impacted upon the mother. Being removed from the relationship, perhaps with the distance involved and the support of her parents, will assist in allowing her to feel emotionally secure and stable, which in turn can only be a positive influence upon her capacity to parent. I consider it to be in J’s best interests for the mother to feel secure, safe and happy.
What is the attitude of the parties to J and to the responsibilities of being a parent, demonstrated by them?
153 I am satisfied that both parents love J dearly. Their poor relationship with each other, lack of trust and the previous VRO have hampered their ability to communicate effectively regarding parenting issues. Each parent has made threats to the other to retain J. It reflects poorly on each of them, that they have been prepared to use their son as a weapon in their disputes.
154 I have articulated my concerns about the mother’s negative view of the father and the limited capacity I consider she has to promote J’s relationship with his father. However, I am satisfied that she will comply with orders of the Court, given her conduct to date and her evidence. I am also satisfied the maternal grandmother will support the mother in this regard.
155 I have raised concerns about the father’s previous attitude to the responsibilities of parenthood, including his removal and sale of the mother’s car, leaving her without transport when she was J’s primary carer.
156 It is important that the father ensures the Agency have accurate details of his income, to ensure that he has is assessed to pay child support at the appropriate rate. Part of the responsibilities of parenthood include the financial support of a child.
Is it preferable to make an order that would be least likely to lead to the further proceedings?
157 It is desirable to make final orders so that J is no longer the subject of ongoing proceedings between the parties. If the mother is not permitted to remain in State A with J, she says she would be unhappy, unable to enjoy the same support she currently enjoys from her parents and friends, and where she does not wish to be. That may lead to further proceedings.
158 A refusal of the father’s request for J to return to Western Australia, he says will make him unhappy and will deprive J of the opportunity to spend regular time with him. That may lead to further proceedings.
159 If comprehensive orders are made at this time regarding J’s arrangements, there is less likelihood of future proceedings. Given J’s age and the limited time he has spent with the father since separation, there may need to be further changes to their arrangements in the future as he gets older. Further, depending on the outcome of these proceedings, the father has deposed he will consider whether to move to live closer to J.
160 The parties and the ICL each seek final orders should be made. I am satisfied that is in the best interests of J.
CONCLUSIONS
161 Having considered the evidence in the context of the primary and additional considerations, I have come to the following conclusions:
Parental responsibility
162 In this case I am satisfied the presumption does not apply, as there are reasonable grounds to believe that the father has engaged in acts of family violence. Police records indicate that the father has a history of acting in a violent manner towards family and former partners. The mother has been protected by a VRO against the father. I accept that the father has held the mother by the throat, yelled at her, prevented her from leaving, followed her when she left and removed her telephone from her. I am also satisfied that the mother has yelled, shouted and pushed the father. I accept that she has pushed him, to protect herself.
163 If I were to make an order for equal shared parental responsibility, The parents would be required to make decisions jointly regarding major long term issues concerning J. They would need to consult with one another and make a genuine effort to come to a joint decision. While J is fortunate to have two parents who love him and want the best for him, his parents do not get along and they struggle to communicate and there is no trust between them.
164 The father voiced some optimism that the parties’ capacity to communicate may improve with the conclusion of these proceedings. I do not share his confidence. The parties have an extremely limited capacity to communicate. There is a high degree of conflict, animosity and lack of trust between them. I do not consider that the parties can consult with each other and make a genuine effort to come to a decision.
165 I am satisfied the person with whom J primarily lives should have sole parental responsibility for him. I intend to make an order that the mother have sole parental responsibility, but on the condition that she is to confer with the father in writing before she makes any major long term decision, that he is to respond, she is to consider his views, they are to attempt to agree and failing agreement, then she will make the decision and inform the father.
166 I consider that such arrangements are in J’s best interests as it will ensure that the father is involved and has input into major decisions for J.
Where should J live?
167 As I do not intend to make an order that the parties have equal shared parental responsibility, it is not necessary for me to consider the outcomes provided for in s 89AA of the Act. In any event, I am not satisfied that it is in J’s best interests or reasonably practicable for him to spend equal time with each parent, given his age, the limited time he has spent with the father, together with the conflict between the parents and limited capacity to communicate. I cannot be satisfied that such arrangements are reasonably practicable at this time.
168 There are practical difficulties in J spending time with the father, if he is permitted to remain in State A, by reason of distance and cost. It is in J’s best interests to spend time with the father and to develop and maintain their relationship. Based upon the children’s contact service report, it appears J has maintained a positive relationship with the father, notwithstanding the limited time they have spent together since separation. That is a relevant factor.
169 I am not satisfied that it is J’s best interests to live in Perth with the mother for the following reasons:
•Neither the mother nor the father have lived in Perth. Neither of them have any family nor did I have evidence of any friends or support network, apart from the father’s evidence that he had recently engaged in the Man Up program in Perth.
•I consider the support the mother receives from the maternal grandparents are important protective factors for J. The mother does not have the support of any family or friends in Perth. I consider such support is important for her and by extension, benefits J.
•I had no evidence about the practicalities of such an arrangement. Specifically, there was no evidence about what accommodation was available, or the costs. Apart from the father’s evidence he would assist the mother to pay a bond, he made no other proposals in terms of financial support. The mother is in financially difficult and limited circumstances. She is dependent upon government benefits and child support to support herself and J.
•To require the mother to relocate to Perth would involve further disruption to J, which I cannot be satisfied is in his best interests. Since separation, he has lived in at least two refuges, before relocating to State A. I consider it would be destabilising to require him to move, yet again.
•There is no certainty that if J was required to live in Perth, that he and the mother would enjoy the same stability and security they currently enjoy in State A.
170 Having weighed all of the factors carefully I have concluded that J should remain living with the mother in State A. I consider this to be in his best interests. J has had significant disruptions in terms of his living arrangements, in his short life to date. The current evidence suggests J is doing well. I am not satisfied that it is in J’s best interests to disrupt that progress, without any certainty that the benefits of requiring the mother to live in Perth and potentially having increased access to the father.
171 J will have stability in terms of his future living arrangements, given the maternal grandparents are happy to accommodate the mother and J. They provide physical, financial and emotional support to the mother, which is in J’s best interests. The mother is vulnerable and benefits from the ongoing assistance from her parents. For these reasons, I am satisfied it is in J’s best interests to require the mother to continue to reside with her parents until she obtains government housing or J commences year 1, as proposed by the ICL.
172 I am satisfied the father will be able to travel to State A regularly if he remains in Regional Town A, given his employment and income. While the father deposed that he was unable to relocate to State A, I was not convinced that he would face the barriers to obtaining employment, as suggested.
173 I am satisfied that the mother will comply with the orders for the father to spend time with J, if she remains in State A, with her mother’s support.
174 In my view, if the mother remains living with her parents, that will enhance her parenting, as she feels safe and supported. The mother’s happiness and well-being is likely to have a positive impact upon J. That outcome was supported by the ICL as being in J’s best interests.
175 I have carefully considered the impact on J of the ongoing separation from the father, particularly if he remains in Regional Town A. I am satisfied that their relationship can be maintained from a distance, both through Facetime and Skype on a regular basis, but also through the agreed orders in terms of the time the father is to spend with J.
Spend time arrangements
176 After careful consideration, I am satisfied that J’s time with the father should be unsupervised, in accordance with the proposals of the ICL. I do not consider J is at risk of harm in the father’s care on the basis that he complies with the agreed orders.
177 The supervision report did not raise any concerns about the father’s capacity to care for J. The mother has previously acknowledged the father is able to care for his son. The father has the support of his parents. While the father has acted poorly at times, on the basis that he and only his parents are present when he spends time with J, I am not satisfied that J is at risk of harm. I accept that the father loves J and desperately wants to be the best father he can be, for his son. I am satisfied that the father is able to care for J in the times as proposed and agreed by the parties, noting the proposals are for gradually increasing periods of time. I consider such arrangements will allow J to become familiar with spending increased time with the father and time away from the mother.
178 I do not consider the father should only be required to provide 48 hours’ notice of his intention to spend time with J. I consider 30 days to be appropriate. That will ensure both parties have sufficient notice and the opportunity to make the necessary arrangements to facilitate J spending time with the father, including the potential travel they will incur.
179 I consider handovers should to take place as proposed by the ICL, at the central City A train station. In my view, that has benefits in terms of being a public location, which is accessible through public transport, if the parties are reliant on such transport. It also appears to be a central location that can be readily accessed. The proposed order will also enable the parties to agree to such other alternative public location, provided that is agreed in writing in advance.
Communication
180 I am satisfied that the agreed orders in terms of how the parties are to communicate by email are appropriate and in J’s best interests. It will ensure the prompt provision and exchange of information about J in writing.
181 I am not prepared to order for the parties to use My Family Wizard. I had no evidence of the cost and availability of the service. I decline to make the order. It is of course open to the parties to agree to use such a service, in the future.
Other
182 I am not satisfied that it is in J’s best interests, nor necessary or proper to grant the injunction sought by the father, restraining the mother from bringing J into contact with anyone apart from her parents without his consent. While the mother has made some poor decisions in the past, I am satisfied that she has taken appropriate steps to protect J in terms of obtaining the recovery order and commencement of proceedings. Such actions demonstrate her ability to act protectively, which I am confident she will do moving forward. Pursuant to the orders I propose, the mother will have sole parental responsibility for J. The injunction the father sought is not practicable. J is to live with the mother. It is appropriate she be able to bring J into contact with friends, treating medical practitioners, extended family as well as other people she is likely to encounter in day to day life. I decline to make the order as sought.
183 I am not satisfied that Ms M should be present when the father spends time with J without the mother’s consent. While I am not making any adverse findings about Ms M, she has been a witness in these proceedings. Ms M has strongly supported the father and has been critical of the mother. I do not consider her attending visits to be appropriate. The priority is for the father to spend quality time with J, to enable them to build their relationship. I consider that is best achieved with the least amount of distraction in terms of third parties being present, excluding the paternal grandparents.
184 It is always open in the future, for the mother to reconsider if the father seeks that other people be present when he spends time with J. I decline to make the order as sought.
185 I am not satisfied or consider it necessary in order to protect J’s best interest to grant the injunction sought by the mother. The father has complied with the orders made by the Court to date. There is no evidence that he has attempted to remove J from the mother’s care or from any third party with whom she has placed J. I do not consider there is a risk he will do so, given his evidence and repeated assurances to the Court. I decline to make the order as sought.
186 SUBJECT TO HEARING FROM THE PARTIES as to the form of the orders only, I propose to pronounce orders as follows:
1.All previous Orders with respect to the child [J] born [in] 2018 (“the child”) be discharged.
Parental Responsibility
2.The Applicant Mother shall have sole parental responsibility for the child in relation to all major long-term issues including:
(a)The child’s education (both current and future);
(b)The child’s religious and cultural upbringing;
(c)The child’s health;
On the conditions that:
2.1The Applicant Mother will contact the Respondent Father in writing and provide her views about any such issue;
2.2The Applicant Mother will consider any views expressed by the Respondent Father with regard to any such issue;
2.3The Applicant Mother and Respondent Father will make a genuine effort to come to a joint decision about any such issue; and
2.4If no agreement is reached between the parties, then within 14 days the Applicant Mother shall make the final decision and advise the Respondent Father in writing of the decision about any such issue.
Live with Orders
3.The child live with the Applicant Mother in [State A].
4.The Applicant Mother be restrained by injunction and an injunction hereby issued restraining the Applicant Mother from changing the child’s ordinary place of residence from the home of the Maternal Grandparents until such time the Applicant Mother secures [State A] Government Public Housing or the child commences year 1 of primary school, whichever comes first.
Spend time with Orders
5.In the event the Respondent Father continues to reside in a State other than [State A] the Respondent Father spend time with the child as follows:
(a)For periods of no greater than 5 hours on 5 consecutive days on no less than 4 block periods of time for 12 months from the date of these Orders;
(b)Following the completion of time prescribed in paragraph a) for 2 non-consecutive overnight periods of time from 10.00am on day 1 to 4.00pm on day 2 within a period of 5 days for a minimum of 4 block periods of time for 12 months; and
(c)Thereafter, following completion of the time prescribed in paragraph b) for periods of up to 3 consecutive nights from 10.00am on day 1 to 4.00pm on day 4 within a period of 5 days for a minimum of 4 block periods of time until the child reaches the age of 5.
6.By consent, in the event the Respondent Father relocates to within a 100 km distance from where the child is living in [State A], the Respondent Father spend time as prescribed in 5 a) to c) above and the Applicant Mother and Respondent Father are to attend a Dispute Resolution Service to discuss any proposed variation to the spend time with arrangements.
7.The Respondent Father is to provide the Applicant Mother, with no less than 30 days’ notice, in writing, of his intention to spend time with the child, pursuant to these Orders.
8.Unless otherwise agreed between the parties, handover at the commencement and conclusion of the Respondent Father’s time is to occur at an agreed location at the central railway station in [City A, State A].
9.The Respondent Father’s time with the child pursuant to these Orders is subject to the following:
(a)The Respondent Father be restrained by injunction and an injunction is hereby issued restraining the Respondent Father from spending time with the child in the company of any person other than the Paternal Grandparents unless agreed in writing by the Applicant Mother; and
(b)By consent, he Respondent Father must continue to participate in the ‘Man Up Program’ or other therapeutic support program as agreed between the Respondent Father and Applicant Mother for 2 years from the date of these Orders and must provide written evidence of such engagement at 6 monthly intervals to the Applicant Mother.
10.By consent, the Applicant Mother is to continue to engage with a therapeutic counsellor as recommended by her treating General Practitioner with the Applicant Mother to provide the Respondent Father with a written report at 6 monthly intervals for a period of 2 years confirming that she has complied with the recommendations of her treating General Practitioner.
11.By consent, in the event the Respondent Father continues to reside in a State other than [State A], the Respondent Father is to have Facetime and/or Skype communication with the child on no less than 3 occasions per week at times to be agreed.
12.By consent, the Applicant Mother and Respondent Father are each to establish a designated email account which they will each utilise to communicate with each other in relation to issues relating to the child.
13.By consent, the Applicant Mother and Respondent Father are each to advise each other of any significant health issue suffered by the child and must inform each other in writing of any medication required to be administered to or taken by the child.
14.By consent, without admission as to needs, the Applicant and the Respondent be restrained by injunction and an injunction is hereby granted restraining each of them from consuming alcohol to excess or illicit substances 24 hours prior to or any time the child is in their care.
15.This is an order to which section 175 of the Family Court Act 1997 (WA) applies and to the extent that this order is inconsistent with the Family Violence Order made in the case between the parties on 17 July 2018 in the Magistrates Court at [Regional Town A], the aforesaid parenting order shall prevail and the Family Violence Order is invalid to the extent of the inconsistency.
16.The Deputy Registrar, Magistrates Court, 150 Terrace Road Perth cause a sealed copy of this order to be forwarded to the Commissioner of Police, the Deputy Registrar, Magistrates Court at [Regional Town A] and the Chief Executive Officer of the Department for Child Protection.
17.All documents produced by named persons pursuant to subpoena be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from the date hereof.
18.In relation to material tendered as an exhibit into evidence in these proceedings, on the expiration of 42 days from the date hereof, all material tendered as an exhibit into evidence, save and except for material produced pursuant to subpoena, be destroyed by the Court without notice to the parties
19.In the event of an appeal being lodged prior to the expiration period of 42 days, paragraphs 17 and 18 above do not apply.
20.The Application and Response be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
KM
Associate22 FEBRUARY 2019
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