BARONE and GARCIA
[2020] FCWA 208
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: BARONE and GARCIA [2020] FCWA 208
CORAM: TYSON J
HEARD: 4, 5, 6, 7 and 10 AUGUST and 7 SEPTEMBER 2020
DELIVERED : 23 NOVEMBER 2020
FILE NO/S: PTW 3949 of 2013
BETWEEN: MS BARONE
Applicant
AND
MR GARCIA
Respondent
Catchwords:
CHILDREN – Best interests – Two children – Where one child has ASD and ADHD and one child has ADHD – Allegations the father has psychologically harmed the children and the paternal grandmother has physically and psychologically harmed the children – Allegations the mother has alienated the children from the father – Where the parents were involved in a trial in 2015 –Since the trial, problems with the children’s time with the father – Where the father alleges the mother has coached the children to make false allegations against him – Where the evidence does not support the father’s claims – Reportable family therapy failed, primarily as a result of the father’s entrenched and negative view of the mother – Where the court is satisfied the children have suffered harm in the father’s care – Where there is a risk to the children in spending unsupervised time with the father – Where orders made for the children to spend supervised time only with the father – Where orders made for the father to continue with psychological counselling – Case turns on its own facts
Legislation:
Family Law Act 1975 (Cth)
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Self-Represented Litigant |
| Respondent | : | Self-Represented Litigant |
| Independent Children's Lawyer | : | Ms Z |
Solicitors:
| Applicant | : | Self-Represented Litigant |
| 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
Pinson v Pinson (No 2) [2020] FamCAFC 111
Re F: Litigants in Person Guidelines (2001) FLC 93-072
TYSON J:
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Barone & Garcia has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
1 [Ms Barone] [(“the mother”)] and [Mr Garcia] [(“the father”)] are unable to agree on the arrangements which are in the best interests of their sons: [Child A] born [in] 2011 and [Child B] born [in] 2013.
2 The mother and the father separated in 2012, when the mother was pregnant with Child B, and Child A was 13 months old. Following separation, the parties were involved in proceedings before the Family Court of Western Australia, which were ultimately resolved by consent in 2015. The Consent Orders provided for the children to live with the mother, for the parties to have equal shared parental responsibility, save for the mother to have sole parental responsibility for education and medical decisions, and for the children to spend gradually increased time with the father, with supervised handovers.
3 The arrangements for the children to spend time with the father broke down. In 2018, the mother commenced the current proceedings, asserting the children were at risk of harm from their father. The father accused the mother of alienating the children. Each parent denied the allegations of the other.
4 As a consequence of those allegations, an Independent Children’s Lawyer [(“ICL”)] was appointed for Child A and Child B. [Ms Y] was appointed as the Single Expert Witness. [Ms X] was appointed as the family therapist. Family therapy appears to have done little to improve the relationship between the parents, primarily as a consequence of the father’s negative, entrenched attitude towards the mother.
5 Child A is now nine years of age. He has Autism Spectrum Disorder (“ASD”) and Attention Deficit Hyperactivity Disorder (“ADHD”). Child B is seven years of age. Child B has recently been diagnosed with ADHD. They are vulnerable young boys.
6 The proceedings are to be determined under the Family Law Act 1975 (Cth). The decision I must make is that which is in Child B and Child A’s best interests. The issues in dispute relate to parental responsibility, what time the children should spend with their father and whether there ought be any conditions in relation to that time.
WHAT IS AGREED?
7 It is agreed the boys will live with the mother. The parents will communicate using Our Family Wizard (“OFW”) and in the event of an emergency, the mother is to inform the father or his brother. They agree to mutual non-denigration orders, and the mother can obtain passports for the children without the father’s consent. They agree to an exchange of information. I am satisfied those orders are in the children’s best interests and supported by the evidence. They are set out in full at the conclusion of these Reasons.
WHAT ARE THE ORDERS SOUGHT?
8 The ICL proposes[1] the mother have sole parental responsibility and the father complete a psychiatric assessment, and spend supervised time with the boys, for two hours on one occasion each month, at his cost. She seeks the children have supervised telephone contact with their father once a week and on special occasions, with the mother to terminate the calls if the father speaks inappropriately to the children. Should the mother terminate calls, she is to seek guidance from Ms X or another therapist.
[1] ICL’s amended Minute of proposed final orders handed up in Court on 7 September 2020, and further amended in closing submissions.
9 She proposes the father send gifts on the children’s birthdays and Christmas, and cards or letters once a month. The father can attend the children’s school events, if agreed in advance in writing, on the condition he does not approach the mother or the children, failing which his liberty to attend be suspended. She proposes the father continue to be restrained by injunction from taking the children to his home or into contact with his parents.
10 When Child B turns 12 years of age, she proposes both children spend time with their father as agreed and failing agreement, they should attend family dispute resolution, with input from the family therapist. She proposes the children continue to attend on Ms X or such other therapist, at the parents’ shared cost. She proposes the mother be able to give the orders to any school or medical practitioners attended by the children.
11 The mother[2] largely supports the orders sought by the ICL, except she proposes the children’s time with the father remain supervised until Child B is 14 years of age. She seeks the father meet the costs of family therapy and the children neither communicate nor spend supervised time with their father until he undertakes a psychiatric assessment.
[2] Minute of orders sought filed 7 September 2020.
12 The father initially sought the children’s time be supervised by a member of his family. By the time of his closing address,[3] the father proposed the children spend unsupervised time with him, commencing with four hours each Sunday for 12 weeks, to extend in regular increments until the commencement of overnight time on alternate weekends. He seeks time with the children on special occasions, and liberty for both parents to travel with the children. He does not agree with ongoing family therapy, or to undertake a psychiatric assessment. He agrees to the mother having sole parental responsibility for medical and educational matters, but otherwise proposes the parties have equal shared parental responsibility. He opposes the injunctions sought.
THE TRIAL
[3] Minute of orders sought filed 4 September 2020.
13 The mother represented herself during most of the trial. She had the assistance of Mr Rynne, as counsel, who conducted examination of the paternal grandmother, and cross-examination of the father and some of his witnesses. The father represented himself during the trial. I explained the trial process and the basis upon which I would make my decision. Both parents were aware of the law, which was canvassed in their papers for the judge. The mother and the father were well-prepared. Both parties were courteous in their interactions with the Court.
14 At times I had to direct the father in terms of his questions. I am confident he was able to fully participate. I am aware of the guidelines regarding the manner in which a judicial officer should deal with unrepresented litigants.[4] I applied those guidelines during the course of the proceedings and am comfortable the trial was fair.
WHAT IS THE EVIDENCE RELIED UPON?
[4] See Re F: Litigants in Person Guidelines (2001) FLC 93-072 at [209] to [253].
15 The mother relied upon her trial affidavits filed 17 July 2019 and 24 July 2020, her financial statement filed 13 January 2020, the affidavits of [Mr W] filed 17 July 2019, and [Mrs Barone] filed 18 July 2019, together with her case information affidavit filed 9 March 2018.
16 The father relied upon his trial affidavits filed 16 July 2019 and 24 July 2020, his financial statement filed 15 January 2020, together with the affidavits of [Mr V], [Ms T] and [Ms S] filed 24 July 2020, and the affidavit of [Ms R] filed 20 June 2018, together with his case information affidavit filed 23 May 2018.
17 The mother’s Notice of Child Abuse filed 9 March 2018 together with the father’s affidavit in response filed 22 March 2018 were also in evidence.
18 The parties relied on the reports of Ms Y filed 24 June 2020, and Ms X dated 15 July 2020. A number of witnesses, including the father’s mother, [Dr Q], and [Mr P] attended trial to give evidence pursuant to a subpoena.
19 A number of documents were tendered as exhibits. Each of the parties and their respective witnesses were cross-examined.
WHAT ARE MY OBSERVATIONS OF THE PARTIES AND THE WITNESSES?
20 The mother was an impressive witness. The mother was open and honest in her evidence. She answered questions fully and in a manner that was helpful. She readily made concessions against her interest, including that she was angry and upset after separation, she sent inappropriate emails, and made inappropriate comments. She admitted to having made mistakes as a parent. She volunteered that the father loved the boys, and both children had positive qualities from each of their parents.
21 She was balanced and measured in her evidence. She was frank about her own shortcomings. The mother described her concerns about the disclosures made by the children, and the difficulties she had communicating with the father. She did not take opportunities to criticise or speak poorly of him. Instead, she focused on factual matters and emphasised her desire for the boys to have an ongoing relationship with their father, in a manner in which they felt safe. I considered the mother to be an honest witness.
22 Mr W is the mother’s partner. He was a co-operative witness, who was direct in his answers. He was supportive of the mother. I found him to be candid and honest in his evidence.
23 Mrs Barone is the maternal grandmother. She was clearly supportive of the mother and presented as a loving grandparent, who has been actively involved in the care of Child B and Child A. She gave her evidence in a frank manner. I consider she was a truthful witness.
24 [Mrs Garcia] is the paternal grandmother. She was subpoenaed by the mother to give evidence. English is not Mrs Garcia’s first language. I am satisfied Mrs Garcia understood the questions that were asked of her, and where necessary, matters were explained by me. After a number of unsuccessful attempts were made by the mother’s counsel to question Mrs Garcia, I made an order for her to be declared a hostile witness.[5] That was supported by the ICL, and not opposed by the father.
[5] On the oral application of the mother’s counsel.
25 Mrs Garcia did not want to participate in the proceedings. She was concerned about her husband who is undergoing treatment for [a medical condition]. That was understandable. Mrs Garcia struggled to answer questions. It was unclear whether she deliberately refused to answer questions, or she was unable to focus her attention. She tended to repeat herself and make statements about a wide array of matters, unrelated to the question she was asked.
26 Mrs Garcia denied living at the same address as the father, despite the fact they both reside at [Property A]. She claimed to be unable to recall when she last spent time with Child A and Child B. She categorically denied the allegations the children had made against her. She was dismissive of the allegations, suggesting the children had been brainwashed. At other times, Mrs Garcia speculated whether the children’s health impacted on their statements. In the end, I concluded that limited weight could be attached to her evidence.
27 The father attempted to give his evidence honestly and as he saw it. I have no doubt the father loves Child B and Child A. He presented as deeply distressed and hurt by the allegations levelled against himself and his mother. He openly expressed his frustration about how he considers the mother’s actions have prevented his relationship with the boys.
28 The father was a difficult witness and for the reasons that follow, I am not satisfied that his evidence was credible or reliable in many respects. He struggled to answer questions. He frequently provided long, rambling answers, which failed to respond to the question he was asked. The father struggled to focus and stay on topic. At times, the father was hostile, argumentative, and grappled to manage his emotions.
29 The father presented as extremely angry at the mother. He repeatedly referred to her brainwashing the children, making false allegations against him, and her embarking on a campaign of parental alienation. He rejected any evidence that was contrary to his own narrative. The father rigidly maintained his belief that the mother had coached the children. His poor view of the mother tainted his evidence, which I found was not balanced. I did not consider he was an impressive witness.
30 There were a number of aspects in which I did not accept the father’s evidence, which I will address later in the Reasons. The father appeared to have a selective memory. At times, he was clear about events that occurred some time ago. At other times, he suggested he had no memory of events which were unfavourable to him.
31 The father made some concessions against self-interest. He confirmed he was upset by Child A’s diagnosis; he found Child B easier to manage than Child A; he was unable to comment on Child B’s attentiveness given the limited time he had recently spent with him; he admitted he had gambled. The father reluctantly accepted the children’s experiences in his care might be different to his recollection. He accepted there was a possibility he had made remarks to the children which made them feel worried and anxious.
32 Ms S is the father’s wife. Ms S has clearly been an important source of support for the father. She was assertive and forthright in her evidence. She is convinced the boys have been coached by the mother, the system has failed the father, and the mother has manufactured false allegations against him. Like the father, she rejected any evidence which contradicted her own views. Despite being advised that various independent professionals had not formed the view the children had been coached by their mother, Ms S insisted she “knew the truth” and had no doubts about her own view.
33 Ms S and Ms Y work in the same building. On 19 February 2020, Ms S confronted Ms Y in the carpark. I do not accept Ms S’s evidence about the incident.[6] I prefer the evidence of Ms Y, that Ms S yelled at her, and told her she was incompetent. Ms S said she was distressed and feeling “the emotional trauma” of the litigation. Ms S wrote it was “incredibly upsetting for me to see the system reward those with false allegations of sexual abuse or child abuse and create victims of innocent men who simply want to spend time with their children”.[7]
[6] Exhibit 16, correspondence from Ms S to the ICL dated 24 February 2020.
[7] Exhibit 16, correspondence from Ms S to the ICL dated 24 February 2020.
34 Ms S struck me as holding fixed and firm opinions about the mother, despite having never met her. Her affidavit was highly critical of the mother stating, “It is my belief that the applicant can afford to make outlandish statements without facing consequence because she has the means to employ morally questionable lawyers willing to protect lies for profit…”, “[the mother] appears to enjoy using excess expletives”, and she “is happy to waste the courts’ time with these capricious games… not grasp[ing] how damaging her behaviour is to her children”. Ms S’s strong negative view of the mother infected her evidence, which was not balanced.
35 Mr V is the father’s brother-in-law. I found him to be an honest and direct witness.
36 Ms T is the father’s sister-in-law. She was a direct and assertive witness. She is strongly supportive of the father and holds a poor opinion of the mother. While I accept Ms T gave her evidence in an honest manner, it was clear Ms T had only heard the father’s version of events. Like Ms S, Ms T was dismissive of the children’s disclosures. Her evidence was of limited relevance in the circumstances.
37 Ms R is a friend of the father. She has spent time with the father and the children in the past and is friendly with the extended paternal family. I consider she gave her evidence in an honest manner.
38 Dr Q is a clinical psychologist. She gave evidence pursuant to a subpoena issued by the ICL. She has a Doctorate in Clinical Psychology, a Bachelor of Science, a Bachelor of Social Work with Honours and a Diploma of Psychology. She has worked in private practice since 2009 and has been a registered psychologist since 2007. I found Dr Q to be an impressive witness. She was careful and considered in her responses. I accept her evidence.
39 Ms X is the family therapist, who also attended trial pursuant to a subpoena issued by the ICL. She was extensively cross-examined by all parties. I found Ms X to be professional and helpful in her evidence, which I accept.
40 Mr P is a supervisor employed by [Contact Service A]. I consider Mr P attempted to give his evidence in a direct manner, however parts of his evidence were unsatisfactory. I will return to his evidence later in these Reasons.
41 Ms Y is the Single Expert Witness, who has prepared one report. The ICL proposed an updated report be prepared for trial. The father objected, alleging Ms Y was financially motivated, racist, and had “clearly demonstrated a sheer lack of child focus, instead writing trashy tabloid lies about me and masquerading them as the truth”. The father accused Ms Y of smirking at Ms S, on occasions after the carpark incident “in an attempt to elicit a response”. Ms Y denied having seen Ms S since the incident. Ms Y confirmed she smiles at people, as she often does not recognise faces. I accept Ms Y’s evidence.
42 The father and Ms S accused Ms Y of having demonstrated bias towards the father. In Ms Y’s report, she referred to the mother giving examples of the father being unable to “stand up” to his mother and his fear being hit by her. The mother told Ms Y she considered such behaviour was a cultural norm, resulting in the father’s family minimising and normalising physical punishment. Ms Y wrote:
Whilst the allegations may seem spurious the research suggests the use of beating to physically punish children is a common problem in [Country A] and [Country B’s] culture [citation].
43 Ms Y included the article in the literature she had relied upon. Ms S was critical of Ms Y saying, “what gives her the ability to say [Country A] is the only culture that hit their kids?...Why bring up his background?”
44 Ms Y did not describe child abuse as normal in the father’s culture as he claimed. Ms Y explained she had not mentioned the mother’s cultural heritage because the father had not raised it as an issue.
45 There was no cogent evidence to support the claims of bias against Ms Y. I found Ms Y to be objective, independent, and professional. She gave her evidence in a measured and considered manner.
WHAT ARE THE RELEVANT FACTS?
Background
46 The mother was born [in] 1979. She is 41 years of age and lives in [Suburb A]. She is a homemaker and [bookkeeper]. The mother is in a relationship with Mr W. He shares care of his two children, with their mother. Mr W has known the boys since March 2017. The mother and Mr W do not live together. Mr W regularly spends weekends at the mother’s home.
47 The father was born [in] 1975. He is 45 years of age and lives in [Suburb B] with Ms S, at the same address as his parents, with separate entrances. The father is an [IT Specialist] and works full-time.
48 The mother and the father commenced living together in August 2008 and married [in] October 2008. They separated [in mid] 2012. They have since divorced. Child A was born [in] 2011. Child B was born [in early] 2013.
49 [In mid] 2013 the father commenced parenting proceedings. When the mother filed her responding documents, she proposed the children spend more time with the father than he was seeking.
Child A’s diagnosis
50 In 2014 Child A’s school raised concerns about his behaviour. He began attending on [Ms O], who conducted an assessment involving both parents. Ms O did not consider Child A had ASD, but recommended a second opinion from a developmental psychologist, such as [Ms N]. The father was highly critical of Ms O’s report.
51 The mother invited the father to meet with Ms N, to participate in Child A’s further assessment. In response, the father wrote:
I am appalled that my beautiful perfectly happy and healthy 3 and ½ year old son be submitted to the emotional distress and questioning of psychologist at such a young age…all of these done, not for his welfare but purely for control and flex of your large financial resources so Carr & co can win their 100k case… It is disgusting… I will not make any comments or decisions on these matters until I received legal advice. Most psychologists, unlike your Carr &co [Ms O] appointed psychologist do the correct and ethical thing and avoid providing opinions to court for various reasons. But it seems that some when you give them a blank cheque are willing to do anything. My response regarding this matter will be conveyed to your lawyers in due course.
52 Child A saw [Dr M], a paediatrician, and [Ms L], a speech pathologist, alongside Ms N. Child A first saw Dr M on 29 April 2015. The father did not attend, despite being invited by the mother. Dr M expressed a preliminary view that Child A had ASD. The mother relayed to the father Dr M’s recommendation that Child A be formally assessed. She wrote:
[Mr Garcia] I took [Child A] to the paediatrician today. He said [Child A] is autistic. He has to go back to the developmental psych and a speech therapist. They ask me questions regarding heritage that I can’t answer for your side and also I’m sure you must have experience with v that would be helpful. I think it would be best if you came to the next paediatrician appointment in the psych appointment with [Ms N]. I will send you a much more detailed email but I thought it right to tell u immediately. I’m sorry to tell u like this. I’m doing everything I can to help him with this. He is said it would have been called Asperger’s syndrome but now they call it autism. I’m sure you have lots of questions. I will do my best to tell u everything on email. He is still our same [Child A]. Don’t worry for him. I’m sorry it’s like this
53 The father responded:
[Ms Barone] I am in tears and in shock… After all we have gone through in the malicious court proceedings that we are going through, this has to be the worse news I have heard… he is a loving son who I love so so so so much and from where I am there is nothing I can do to reach him or help him as he has been blocked out of my life as much as possible… although he lives with you and you are raising him I don’t want to blame you and I won’t… is just that I remember our little boy being so healthy and normal and I hope that it wasn’t our fault with our separation that has caused so much damage to him… I am really hoping that the doctor you have seen is wrong… after some thought I don’t think it was appropriate for a baby son… to be submitted to spychological (sic) weekly counceling (sic) and opted to keep him away from child psychologists… but this is a different condition and I will organise immediately for my son to have another diagnosis with a different paediatrician..I hope you can understand and cooperate to the fullest… things change a lot with this news [Ms Barone] and I hope your lawyers can show a little bit of sympathy at the moment and put a bit of thought into what is best for our son…
54 On 10 August 2015 both parents attended on Dr M with Child A. In the waiting room, the father told Child A his mother had “brainwashed” him, and words to the effect of, “it’s a shame you have to live with a mentally ill mother”. Child A became confused and upset.
55 Ms N had four appointments with Child A between April and August 2015. She met with each parent and obtained information from Child A’s school teacher, [Ms K]. The father’s reports of Child A’s behaviours differed to those of the mother and his teacher. For example, the father reported Child A adapted quickly to play with other children, and he engaged in imaginary play. The mother and Ms K reported Child A showed little interest playing with other children, he demonstrated limited capacity to engage in co-operative play, and he rarely played with his peers.[8] The father told Ms N[9] he did not consider Child A had autism.
[8] Page 5, Exhibit 10, report from [Psychologist A] and cover letter to the mother dated 6 May 2015.
[9] Exhibit 1 to the mother’s trial affidavit filed 17 July 2019.
56 Ms K reported Child A engaged in echolalia and idiosyncratic phrases, including swearing in a rhythmic and repeated pattern. The mother reported Child A chewed the inside of his mouth, which Ms N observed on numerous occasions.[10]
[10] Page 5, Exhibit 10, report from Psychologist A and cover letter to the mother dated 6 May 2015.
57 Ms N[11] found Child A met the DSM-V criteria for ASD. She set out a number of recommended interventions and resources for the parties. Ms N concluded her report:
Despite ongoing conflict between parents, it is highly recommended that both [the father] and [the mother] work together as parents to benefit [Child A’s] development. Developing effective co-parenting strategies are difficult with typically developing children. Co-parenting can be even more difficult when a child has additional needs and requires additional supports. Parents are encouraged to help access help for [Child A] within the private or public sector to assist in this process.
[11] Exhibit 10, report from Psychologist A and cover letter to the mother dated 6 May 2015.
58 The mother arranged for Child A to attend on [Ms J], to assist in managing his anxiety. Ms J met with the mother, Child A, and Child B, initially on a weekly basis. During that period Child A disclosed his father and “[Mrs Garcia]” were locking him in a cupboard with baby Jesus when he was naughty.
59 The father denied the children called his parents an abbreviated version of grandma and grandpa in [Language A]. I accept they did, given the children’s statements to third parties, the mother’s evidence, and the evidence of Mr V. Since separation, the father has encouraged the children to refer to his parents as grandma and grandpa.
60 The mother arranged for Ms J to attend the father’s home on two occasions, to assist him to manage Child A’s behaviour, to utilise proper parenting strategies, and reduce Child A’s anxiety. Ms J required the father to sign to confirm her attendances. He refused to do so. The mother met the costs of Ms J’s appointments, including with the father.
Family Court proceedings and the first trial
61 The parenting proceedings were initially listed for trial in May 2015. The trial was adjourned due to Child A’s recent diagnosis.
62 On 19 May 2015 interim orders were made for the children to spend time with the father each Thursday from 2pm to 6pm and Saturday from 8:30am to 6pm, with supervised handovers by [Contact Service B]. Injunctions were made restraining both parents from recording the children at handovers. Contact Service B prepared a report in October 2015. In November 2015, Contact Service B withdrew their services. The father says they did so because of a subpoena. The mother says Contact Service B terminated their service because the father breached the terms of their contract, including sending them lengthy emails. I am unable to make any findings as to why Contact Service B terminated their services, given the available evidence.
63 The proceedings culminated in a three day trial before Justice Crisford on 23, 24 and 25 November 2015. On 21 November 2015, the parties had attended a handover at McDonalds.
64 During cross-examination, the father was asked whether he had recorded the mother at handover.[12] The father initially said he was talking on his phone and denied recording the handover. The trial judge asked the father to provide his mobile telephone to her associate, which revealed he had two recordings of the handover. The trial judge repeated the question, to which the father replied “I might have your Honour. I’m sorry”.
[12] Exhibit 13, transcript of the hearing on 23 November 2015.
65 When the father was asked in this trial about the incident, he eventually admitted he had lied on oath. This demonstrated the father’s willingness to tailor his evidence to suit his case. It raised questions about his credit.
66 On the last day of trial, the parties reached an agreement, and orders were made by consent. The Orders provided for the children to spend time with the father each Wednesday evening, building up to alternate weekends, with supervised handovers.
Events after the Consent Orders
67 [Contact Service C] supervised handovers from November 2015 until July 2017. On 15 September 2017 Contact Service C terminated their services, due to the father sending repeated messages about the mother, including raising his complaints in the presence of the children. [Contact Service D] then conducted supervised handovers.
68 In early 2016 the father stopped spending time with the children on Wednesdays.
69 In late 2017, early 2018 the mother says the children began making concerning comments about their father and she observed changes in their behaviour. She described Child A as regularly suffering from nightmares, he began soiling himself, was anxious, and emotionally fragile. Child B consoled Child A, saying he would look after his brother. Child A began to ask whether Ms S would be present, saying his father and the paternal grandmother were nicer when she was there.
70 Child A counted the days before he would see his father. He tried to negotiate with his mother, to not go. The mother told Child A she would clean when he was with his father. Child A offered to help her clean, said he would be good and not use his iPad, if he could stay with her. The mother encouraged Child A by reminding him his dad loved him and missed him, and telling him he needed to go.
71 When the mother tried to explore why he was reluctant to go, Child A would say words to the effect of, “I can’t tell you”, and “even if I told you what was happening at daddy’s you aren’t my real mother so you can’t help”.
72 Child A became increasingly upset and teary before visits. In early 2018 he began having frequent nightmares. When the mother consoled him, Child A said she was not his real mother. When she asked why he thought that, Child A said, “I don’t care that you’re not my real mother, I love you like you are, you do everything for me”.
73 Child B began making similar comments, telling the mother she was not his real mother, and she had “bought him from [the paternal grandmother]” because she was rich. The mother showed both children photographs of when they were newborns, to convince them she was their mother.
74 Following visits, Child A was quiet and tearful. He eventually stopped complaining and would say to his mother that she could not help. He frequently returned with severe mouth ulcers. Child A reported, at times, the paternal grandmother would pinch him, pull his hair, and wake him up at night.
75 Both boys told their mother they had been locked in a cupboard with baby Jesus in their father’s care. The mother thought the children had been put into time out and told to think about Jesus. She did not assume the worst of either the father or the paternal grandmother. The mother’s views about the children’s disclosures have now changed. The mother feels guilt and remorse for not taking action earlier.
76 The mother’s observations of the children’s behaviour are corroborated by Mr W and the maternal grandmother. Mr W deposed while the children previously returned from visits being tired and slightly frazzled, he observed a change in their demeanour around Christmas 2017, early 2018, particularly in respect of Child A. Child A appeared more tired, and less joyful and playful. He was more introverted, avoiding conversations and eye contact. He also observed Child A suffering from mouth ulcers.
77 The maternal grandmother deposed the boys were reluctant to talk about what they did at their father’s; they asked whether the mother was their real mother and began asking repeated questions about their mother dying. She described Child B as obsessed that his mum was going to die.
78 The maternal grandmother cared for the children when the mother went away. Following a visit with their father, Child B and Child A returned highly distraught, reporting “daddy said mum’s plane is going to crash and she is going to die”. She reassured them. She overheard Child B tell Child A before visits, words to the effect of, “if daddy says mummy is a liar or doesn’t love you, just say yes and don’t listen”.
79 Child A had nightmares, including dreams about men being in their home and the mother not being home. He reported his father said his mother left him alone at night, and had men over when he was asleep. The mother reassured Child A. She developed a routine of sweeping the floors before bedtime[13] and locking the front door, to assure the children they were safe.
[13] To show the boys no one else was in their home.
80 In February 2018, on the way to handover, Child B told Child A he should not cry all the time at his father’s because it made matters worse. Child B told his mother Child A would cry and ask for her, which made his dad angry. When the mother handed the boys to the supervisor, [Ms H], she reported what Child B had said. Ms H confirmed Child A had been crying at handovers for the last few weeks and was reluctant to go.
81 At the conclusion of that visit, Child A had bleeding mouth ulcers. The mother told him she was going to get him help to stop the ulcers, and to be happier at his father’s.
82 The mother obtained a referral for Child A to attend [Psychologist B], where he saw Dr Q. She selected Psychologist B because their therapy was not reportable, in the hope the father would be supportive.
83 Following Child A’s first appointment with Dr Q, the mother asked the father to reduce the nights Child A spent at his home. He refused. The mother emailed the father in early 2018, asking to change the children’s visits to daytime only. She wrote, “please understand that I am not in anyway (sic) saying that [Child A’s] current issues are a result of anything you are doing, perhaps it is something else that he is dealing with in this way as he is a child”. She referred to Child A “struggling immensely and keeps telling me that I am not listening”. She asked him to attend, saying she would “very much appreciate your contribution to this as you are his father and would know things that I as his mother do not. Your perspective would be helpful in getting this sorted quickly”.
84 The father sent a lengthy response which is set out at paragraph 435 of the mother’s trial affidavit filed 17 July 2019. He agreed Child A’s behaviour was concerning and accepted the invitation to attend Dr Q.
85 The mother suspended the children’s visits following Child A’s second session with Dr Q [in early] 2018. The mother says Dr Q said she would be mandated to report the mother to the Department of Communities if she made the children available to the father given a disclosure made by Child A, which Dr Q could not disclose due to patient confidentiality. Dr Q did not make any note of that recommendation, nor was she cross-examined about it.
86 The mother reported Child A’s levels of anxiety reduced after visits stopped. He stopped soiling himself and appeared more bubbly, chatty, and happy. Child B became less angry and mean, and less emotionally volatile. Child B’s confidence increased.
87 Both boys became more open about what was happening in their father’s home. Child A disclosed his father made him “say all bad words like fuck and cunt and my mother is a slut, my mother is a fuckhead, I hate my mother, I wish my mother was dead really bad things and I have to stay there till I say them all”.[14]
[14] Exhibit 8, paragraph 30 of the mother’s affidavit filed 5 June 2018.
88 In late April 2018 Child B told Child A they were never going to see their father again, because of Child A. The mother reassured them that was not the case and she was working on it. Child B later told his mother that his father made him “play the bad game too but if you just say it you can go, Daddy is stupid and it isn’t true and doesn’t matter but if you just say it and go but [Child A] makes it hard for himself because he won’t do it and that makes Daddy angry”. Following those disclosures the mother made arrangements for Child B to see a psychologist. Child A continued to attend on Dr Q.
89 In June 2018 interim orders were made for the children to spend daytime visits only with the father, with supervised handovers.
Dr Q
90 Child A first saw Dr Q [in early] 2018. She has since seen Child A on approximately 47 occasions, at regular fortnightly appointments. Dr Q explained she saw the mother at the commencement and conclusion of each session, but the sessions were with Child A alone.
91 Dr Q described Child A as liking to adhere to rules and he coped poorly when he makes mistakes. In her view, Child A benefits from a strong routine and sense of predictability. She has engaged Child A in cognitive behavioural therapy.
92 Dr Q confirmed Child A found family therapy to be anxiety-provoking when he was expected to speak up in front of his father.
93 Dr Q explored with Child A why he was tearful before visiting his father and what he meant by “bad games”, which she assumed were computer games. Child A confirmed his father had told him not to tell and was not prepared to say what the “bad games” were. Child A said the games were “super bad” and he was scared. From Dr Q’s observations Child A appeared unable to talk about these matters. In contrast, Child A would speak freely to her about other matters that were worrying him, such as when he was in trouble.
94 Dr Q explained to Child A he did not need to keep secrets. She then arranged a joint session with both parents, explaining the importance of Child A not keeping secrets, to prevent anxiety and confusion. The father denied he had done so. He denied the mother’s reports about Child A saying he had denigrated the mother, and that the paternal grandmother had pulled his hair, pinched and hurt him. The father discussed at length the court proceedings, the mother’s financial resources, and vacillated between crying and being aggressive. Dr Q said the father presented in a verbose and agitated manner, and struggled to stay on topic.
95 The father said words to the effect of, “this is so frustrating. I am going to kill myself”. The mother responded that would make life easier for everyone. The father then accused the mother of threatening to kill him. The father denied he had ever threatened self-harm and suggested Dr Q had misunderstood his passion for his children. I prefer the evidence of Dr Q, which was unshaken in cross-examination.
96 At the end of the session, Dr Q told Child A his parents had agreed he should not keep secrets, he could speak openly with each of them, and it was important he told someone if he felt unsafe. She described Child A as not reacting, but appeared to be trying to process what he had been told.
97 In subsequent sessions, Dr Q attempted to explore with Child A the “bad games”. Child A confirmed his father had locked the door, and told him to say bad things about his mother. Child A admitted he cried a lot at his father’s home.
98 In December 2018 the mother told Dr Q that Child B had said on multiple occasions that she and [Jarrah] were liars, they were brainwashing the boys and “daddy said mummy is a liar”. Jarrah is Dr Q’s therapy dog. Child A told Dr Q she was lying. When she asked him what she had lied about, Child A was unable to say.
99 Dr Q described Child A as becoming anxious and reluctant whenever she tried to discuss family matters. Child A’s body stiffened, he had a blank expression, and provided minimal answers to her questions. In her view, Child A’s reactions were possible symptoms of anxiety or trauma. Dr Q rejected the suggestion Child A’s ASD diagnosis impacted on his desire to see his father, explaining the issue was the visits were provoking anxiety for Child A.
100 Dr Q opined and I accept that Child A demonstrated high levels of anxiety, despondency and confusion: he was chewing on his cheek, biting his tongue (which he showed her), and had outbreaks of mouth ulcers (which she observed). She considered Child A banging his head, having explosive diarrhoea after contact and soiling himself, were reactions to being anxious. From her observations, Child A was less anxious when not spending time with his father.
101 The father’s cross-examination of Dr Q was telling. He was anxious to ascribe blame to the mother, continually focusing on his criticisms of her. Dr Q said she considered the mother was a reliable reporter, and she had no concerns about the mother being hypervigilant or her parenting of Child A.
Notice of Abuse
102 The mother commenced the current proceedings in March 2018. She filed a Notice of Child Abuse, which detailed the children’s allegations against the father and the paternal grandmother, including:
(a)the father and paternal grandmother locked Child A in a cupboard as a form of punishment;
(b)the paternal grandmother was pinching the children, telling the children the mother was not their real mother; the mother had bought the children from the paternal grandmother; the mother does not love the children; the mother was going to hell; the mother brings strange men into the house at night when they are asleep; which caused Child A nightmares;
(c)the father and the paternal grandmother were denigrating members of the mother’s extended family;
(d)Child A was soiling himself on returning from time with his father, and suffering from mouth ulcers;
(e)Child A was crying excessively at handovers and when in his father’s care; and
(f)both children told the mother they were not allowed to say what happened at their father’s home.
103 On 20 July 2018 the Department of Communities advised following a preliminary assessment, they did not consider any further action was warranted.[15]
Children’s meeting with the ICL
[15] Exhibit 2, correspondence from the Department of Communities dated 20 July 2018.
104 On 15 June 2018 the ICL met with both Child B and Child A and wrote to both parents, relaying what the children had said.[16] Both Child A and Child B reported when they were naughty, their father put into time out, in a room with the door shut. Child A was unsure why he was not seeing his father. Child A did not want to sleep at his father’s house because he felt scared and cried. He told the ICL that bad games happen at his father’s home, which included using swear words. He would not elaborate further. Child A said his paternal grandmother told him that, “his mummy was not his real mum”, he disliked her talking that way, and it made him feel confused.
[16] Exhibit 2 to the mother’s affidavit filed 17 July 2019.
105 Child B told the ICL he liked seeing his father, he did not like sleepovers, but would like to sleep at his dad’s when he was older. Child B reported missing his father. He said he got along okay with his grandmother; he disliked when she pulled Child A’s hair, and she sometimes pinched him hard.
Single Expert Witness
106 Pursuant to orders made on 22 June 2018, Ms Y was appointed as the Single Expert Witness. Ms Y is a psychologist. Her qualifications and experience are set out in her report.
107 Ms Y met with each parent, inspected the subpoenaed material and court documents. Ms Y met with the children, both on their own and with each parent. She also met with Ms S twice. Ms Y requested to meet with the paternal grandmother, which the father refused.
108 In January 2019 Ms Y’s report was published. It later emerged the report was a draft version, which Ms Y identified prior to the trial, then filed the final version on 24 June 2020. Having conducted a comparison of Ms Y’s draft and final report, there were relatively minor modifications, none of which altered her recommendations or the substance of the report. Ms Y accepted the father’s complaint that the filing of the draft report was unprofessional and unhelpful.
109 The salient aspects of Ms Y’s report are as follows:
•Ms Y recorded each parent’s version of events about their relationship and subsequent events. Ms Y summarised Dr Q’s notes and her unsuccessful attempt to speak with her. She noted the mother’s evidence that Dr Q recommended she not permit the children to spend time with their father, however Dr Q’s notes did not corroborate that advice.
•She described the father as lacking appropriate boundaries, struggling to engage in the interview, highly defensive and difficult to keep on topic. He was “prone to hyperbole and expressed feelings of persecution” and fixated on the mother’s financial position. Ms Y considered the father was highly resentful of the mother. She described the mother as egocentric, but quick to point out her own faults. She considered the children had a positive and healthy attachment with their mother, and both boys were content and relaxed in her company. She found the children were happy and appeared comfortable with their father, who presented as playful and attentive.
•Child A was seven years old. He presented as emotionally, socially and developmentally young for his age, with immature levels of emotional literacy, verbal and social skills. He was high functioning for a child with a diagnosis of ASD. Child B was an active and inquisitive five year old. Given the children’s ages and lack of emotional maturity, Ms Y did not consider it appropriate to ascertain their views.
•Both boys were aware of the conflict between their parents. Child A became highly dysregulated when Ms Y discussed his recent visit with his father. When Ms Y attempted to reassure him, Child A told her there were cameras in her room watching what he said. When she explained that was not the case, Child A looked confused, presented as anxious and avoided any further discussion about his father’s home, leading to termination of the session. He then soiled himself. Ms Y concluded:
It is evident that exposure to conflict between his parents and inconsistency/instability across households underpin his feelings of anxiety, confusion and sadness.
Unresolved emotions can often impact on a child’s ability to develop appropriately in other areas of their life, as such this should be an area to monitor in the future for both of the children.
Using the bear cards to indicate their feelings [Child B] indicated he felt sad when his parents did not get along and [Child A] indicated he felt scared.
•The mother acknowledged she had previously used physical discipline, but now had improved strategies acquired through behavioural therapists and courses. She admitted she yelled at the children, and also swore at home.
•Both children disclosed their father locked them in a room, and spoke negatively about their mother. They confirmed their mother yelled at them when they were naughty and sometimes smacked them. They reported their mother disliked their father.
•Ms Y did not find evidence to suggest the children had been alienated by the mother. She considered the mother had consistently encouraged contact between the children and their father, while having genuine concerns about Child A’s regressions and statements. Ms Y considered the mother had demonstrated proactive behaviours, such as taking Child A to see a psychologist, before ceasing contact. She also observed the mother’s distress at being advised the children should not see the father.
•Ms Y considered both parents could meet the children’s physical and social needs. She raised concerns about the father’s capacity to identify and support the children’s emotional needs. If the allegations and children’s disclosures were found to be true, that would constitute psychological, emotional, and physical abuse.
•While the father reported being supportive of the boys’ relationship with their mother, Ms Y found him to have unresolved feelings of anger and resentment, rendering it unlikely he could work co-operatively with the mother, for the benefit of the children.
•She predicted both children, “would experience significant behavioural and emotional regressions including anxiety, sleeping difficulties, overt distress, potential eating, toileting and educational issues if they were removed from their mother’s care”.
•She recommended immediate family therapy.
Family Therapy
110 On 22 July 2019 orders were made by consent for the parties to attend reportable family therapy with Ms X. Ms X holds a degree in Social Work and is a registered counsellor with Medicare. She has 17 years’ experience in providing counselling to families.
111 Ms X has been conducting family therapy since August 2019. She has seen the children on approximately 12 occasions and has met with each of the parents individually on four to five occasions. In July 2020 she met with the father and Ms S. She has convened joint sessions with both parents, in addition to two sessions with the children and the father.
112 She prepared a report dated 15 July 2020, the salient aspects of which are as follows:
•The father presented with a very negative attitude towards the mother, which she attempted to address. She suggested the father write succinct emails, instead of lengthy emails containing inflammatory accusations. The father either disregarded her advice or was unable to do this, which Ms X described as demonstrating a “level of lack of impulse control or cognitive understanding of how damaging this type of communication was”. The father struggled to stay on topic and was unable to refrain from making negative comments about the mother. Ms X considered the father had made some progress, which she suspected was due to Ms S’s assistance.
•Ms X canvassed with the father the importance of not denigrating the mother to the children, given their disclosures. The father denied doing so, but admitted he had told the children their mother had lied.
•Child B told Ms X he felt sad and upset when his father said bad things about his mother, but this was no longer occurring.
•Child A displayed more reluctance to spend time with his father. He described his father as “kind of rude” and he said mean things about his mother. Ms X gained the impression that was not currently occurring, but it had clearly impacted on Child A’s relationship with his father.
•Child A sought out his mother for reassurance, particularly when joint sessions were scheduled with the father. Ms X described Child A as very anxious and possibly angry with his father. Child B appeared closer to his father. Child B described enjoying time with him and looking forward to visits, but accepted when he did not spend time with him.
•Both children had a secure attachment to the mother. Both boys felt their parents’ disliked one another.
•She recently saw the children between May and July 2020. Both boys then presented as content and healthy. They said they had not wanted to attend recent visits with their father, but the visits had gone well.
•Ms X considered Ms S could successfully redirect the father and she would act protectively. The children said they liked Ms S and agreed she was a “safe person”. The children told Ms X they felt comfortable with Ms S being present when they spent time with their father. Child A said he preferred the current professional supervisor.
•She recommended professional supervised visits, following which Ms S should be present, alongside ongoing family therapy.
113 Ms X did not consider the parties were able to co-parent and make joint decisions, due to their difficulties communicating.
Children’s time with their father
114 In June 2018 interim orders were made for unsupervised visits between the children and the father each Sunday from 10am until 3pm, with handovers to be supervised by Contact Service D at [a shopping centre]. The orders included an injunction restraining the father from bringing the children to his home and into contact with his parents.
115 The father admits he took the children to his home [in] September 2019 when one child was unwell. The mother considers the father has breached the injunction and permitted the children to see his parents on a number of occasions, including in August 2018, Child B’s birthday in 2019, Easter, and for other children’s birthdays, based on the children’s comments. The maternal grandmother confirmed in May 2019 the children told her they had seen the paternal grandmother, who would not let them pat her dog. The father’s and his mother’s denials were not convincing.
116 The children continued to spend time with the father on each weekend, until October 2019 when the father said he could no longer afford the handover costs. In November 2019 the parties agreed in therapy to trial unsupervised handovers, on a number of conditions, which included that the father would stop sending inflammatory emails. In December the parents conducted handovers between themselves. [In late] December 2019 the mother told the father she was not prepared to continue with unsupervised handovers and wanted to revert to the orders. He then filed an interim application.
117 On 15 January 2020 interim orders were made for handovers between the parties, with each parent to park in a specific location, wait in their car and not communicate with one another. Those arrangements were to continue unless the mother confirmed she wanted to reinstate supervised handovers.
118 The father spent time with the children in January and February 2020 on five occasions, with the parties personally conducting handovers. The mother terminated the arrangement, because the father continued to send long, inflammatory emails and not comply with the orders. The children stopped spending time with the father, because he refused to reinstate supervised handovers.
119 [In mid] 2020 Child B had a FaceTime call with the father. While the father suggested the mother terminated the call shortly after it began, the call log confirmed FaceTime occurred for 12 minutes.[17] During the call, the father asked Child B for his Fortnite player details, suggesting they could play together. The father told Child B not to tell his mother, which the mother overheard. While the father denied doing so, I reject his evidence. The father sent Child B a friend request on Fortnite, which the mother blocked. The mother was critical of the father telling Child B to keep a secret, given the history.
[17] Exhibit 4.
120 On 26 May 2020 the ICL wrote to the father, raising her concern about the children not spending time with him.[18] She reiterated the mother would agree to unsupervised handovers, if the father desisted from sending long, hurtful emails, which he continued to do. As a result, the mother felt unsafe doing handovers herself. The ICL recommended the father agree to supervised visits.
[18] Exhibit 18.
121 Mr P from Contact Service A, supervised three visits [in mid] 2020, paid by the mother.[19] Mr P reported during the first visit, the boys were not enthusiastic to see their father and vacillated between appearing indifferent and smiling in a restrained manner. The boys enjoyed bowling and playing tag in the park.
[19] Exhibit 1.
122 [In mid] 2020 the father and Ms S met with Ms X. Ms X discussed the children’s disclosures, to ensure Ms S was aware of the allegations, and in an effort to educate the father about the damage to the children by him speaking badly about the mother. Two days later, the father had a supervised visit which was the topic of some focus at the trial.
123 Following the visit, the father emailed the ICL and wrote:
An incident occurred last Saturday during my visit with my children that I believe needs to be reported. Furthermore, at my appointment with [Ms X] last week, it was highlighted that my children are being withheld from me because of erroneous beliefs that I badmouth their mother. Thus I am obliged to report this incident on the hope that it can be prevented from happening again.
I believe that it is of extreme importance that the children be addressed by the appropriate expert and be explained to them that the following can not ever be repeated as a joke in any way whatsoever. unless it was of course true. If the children need further help from a psychologist understanding the current issues, please speak to [Ms X] to ensure that these actions do not severely affect both [the mother] and I.
124 The father reported at around 4:40pm, without warning and with a lot of laughter, Child B said “Dad, I am going to tell [Mr P] that you said bad things about mum”. Child B continued to laugh. The father followed Child B to Mr P, where Child B said “Dad just said bad things about mum”. Mr P looked at the father and said “you didn’t, did you?” The father denied making the comment, and said he believed Child B was joking.
125 Mr P subsequently prepared a report. He described the boys and the father as very active, including climbing a jungle gym and playing tag. Mr P wrote:
…towards the end of the visit ([Mr Garcia] and the children were up on the climbing equipment). [Mr Garcia] and [Child B] came down. [Mr Garcia] informed the supervisor that [Child B] had told him that he was going to tell the supervisor “Dad had said a bad thing about mom” apparently is a joke. [Mr Garcia] appeared upset. [Child B] confirmed this was the case. The supervisor gently explained to [Child B] that this was not a good joke and that we should never say “bad jokes” about our parents. [Child B] nodded. He did not appear upset and they return to playing.
126 In cross-examination, Mr P confirmed he did not see or hear Child B laughing. Mr P was unable to hear the father and the children on the climbing gym, despite the obligation to supervise. When Child B approached Mr P, the father’s hand was on Child B’s shoulder guiding him, and Child B had his head down. Mr P confirmed the father told him that Child B had made the comment. Mr P asked Child B if it was true, and Child B nodded. Mr P acknowledged asking Child B to confirm, in his father’s presence, was not appropriate. I agree. Mr P’s notes were consistent with his report.
5.Upon Ms [G] or such other psychologist confirming in writing to both the ICL and the Mother, that they have received and read the material referred to in the preceding order, then the children’s time with the Father can commence pursuant to paragraphs 6 and 9 below.
6.Until [Child B] turns 12 years of age, the children spend time with the Father supervised by a child contact service for up 2 hours, to take place on a Saturday or Sunday on the first weekend of each month or at such other times as agreed between the child contact service and the parties in writing.
7.The costs of the child contact service are to be met by the Father, save and except for intake interviews where the parties are to meet their own costs.
8.The Father is to spend such other time with the children as agreed to by the parties in writing.
9.The Father communicate with the children by telephone, including facetime or Skype, as follows:
(a)each Wednesday between 7.00pm and 7.30pm.
(b)on each child’s birthday between 7.00pm and 7.30pm, or at other such time as nominated by the Mother in writing;
(c)on Father’s Day between 9.30am and 10am, or at other such time as nominated by the Mother in writing;
(d)on Christmas Day, between 7.00pm and 7.30pm, or at other such time as nominated by the Mother in writing.
10.All communication between the Father and the children, as referred to paragraph 9 above, is to take place with the phone on speaker with the Mother to supervise the calls. In the event the Father speaks to the children inappropriately, the Mother be at liberty to terminate the call.
11.In the event the Mother terminates calls pursuant to paragraph 10 above:
(a)she is to consult with [Ms X], or such other family therapist for guidance;
(b)on providing written notice to the Father, the Mother can suspend the telephone calls for the following 7 days.
12.The Father be at liberty to send presents for the children’s birthdays and at Christmas, and to communicate with the children by card and/or letter on no more than one occasion each month.
13.Once [Child B] reaches 12 years old, the Father spend time with the children as agreed between the parties, with the Mother to obtain input from the family therapist.
14.If the parties cannot reach agreement in relation to paragraph 13 of these Orders, the parties are to attend Family Dispute Resolution, with the Dispute Resolution provider at liberty to liaise with the family therapist prior to any mediation between the parties.
15.The Mother is to continue to facilitate the children’s attendance upon [Ms X], or such other family therapist as appointed, as directed by the family therapist, at her sole cost.
16.If the family therapist requires the Father to attend, he is to meet his costs. If the Father is required to attend with the Mother and/or the children, then the parties are to share the costs equally.
17.The Mother have leave of the Court to provide a copy of these Reasons and Orders to the family therapist.
18.The Father is to continue to engage with Ms [G] or his treating psychologist to support and improve his relationship with the Mother, to improve his capacity to parent and support the children’s relationship with the Mother, on terms recommended by the psychologist, at his cost.
19.By consent, the Mother is to authorise any school attended by the children to provide copies of the children’s school reports to the Father.
20.If the Mother agrees in writing in advance then the Father be at liberty to attend the children’s assemblies and other school events where parents are ordinarily invited to attend, on the condition he does not approach or be within close proximity of the Mother and/or the children, unless specifically agreed to by the Mother in writing.
21.In the event the Father breaches the condition, set out in paragraph 20 above, the Mother has liberty to notify the Father in writing that he is no longer at liberty to attend such school events, unless specifically invited to do so by the Mother, in writing.
22.Other than is provided for in these Orders, the Father be restrained by injunction and an injunction be granted restraining him from attending any school where the children are present.
23.By consent, the Mother be at liberty to provide a copy of these Orders to any school and/or medical practitioner attended by the children.
24.The Father be restrained by injunction from:
(a)taking the children to [Property A];
(b)bringing the children into contact with the paternal grandparents.
Communication
25.By consent, the parties are to communicate in relation to arrangements for the children and children’s welfare issues only, using Our Family Wizard, or a similar program specifically set up to assist separated parents to communicate.
26.By consent, the parties are to forthwith download and set up the communication program referred in paragraph 25 above, and in doing so are to meet their own costs.
27.By consent, in the event of an emergency or serious medical issue concerning the children the Mother is to inform the Father, or the Father’s brother, as soon as practicable by phone call or text message and is to keep the Father informed.
28.By consent, the parties be restrained by injunction and an injunction be granted restraining them from denigrating the other parent in the presence and/or earshot of the children or allowing any other person to do so.
29.By consent, the Mother, is at liberty to apply to Commonwealth of Australia for passports to issue to the children for the purpose of holidays.
30.By consent, the consent of the Father, to the issue of passports for the children be dispensed with.
31.By consent, subject to any further requirements of the Department for Foreign Affairs and Trade, passports be issued to the children to enable them to leave the Commonwealth of Australia for the purpose of hoildays.
32.The costs associated with the issue of a passport for the children referred to in the preceding orders herein be met by the Mother.
33.The Father have leave to provide these Reasons to [Ms S] and [his brother].
34.Subject to the institution of an appeal by either party or the ICL, then upon compliance with paragraph 4 and 5, the Independent Children’s Lawyer be discharged.
35.The Mother and Father forthwith do all things necessary and sign all documents required to give full and immediate effect to these final parenting orders.
36.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.
37.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
38.In the event of an appeal being lodged prior to the expiration period of 42 days, paragraphs 36 and 37 above do not apply.
39.The Mother’s Form 1 Application filed 9 March 2018 and the Father’s Form 1A Response filed 23 May 2018 and any outstanding Form 2 Applications and Responses be otherwise dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
CD
Secretary
23 NOVEMBER 2020
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