BOOTH and PAGE

[2020] FCWA 222

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: BOOTH and PAGE [2020] FCWA 222

CORAM: SUTHERLAND CJ

HEARD: 4 DECEMBER 2020

DELIVERED : 9 DECEMBER 2020

FILE NO/S: PTW 566 of 2013

BETWEEN: MS BOOTH

Applicant

AND

MR PAGE

Respondent

Catchwords:

CHILDREN - Interim - Child suffering from significant and complicated medical issues - Spend time with arrangements following child's discharge from hospital and during the [post-procedure] recovery period - Case turns on its own facts

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Ms Bunney
Respondent	:	Mr Cole
Independent Children's Lawyer	:	Ms A

Solicitors:

Applicant	:	Cullen Macleod Lawyers
Respondent	:	Moana Chambers- Barristers & Solicitors
Independent Children's Lawyer	:	Legal Aid WA

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

Jopson & Lilwall (No. 2) [2016] FamCAFC 262

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 Booth and Page has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

INTRODUCTION

1[Ms Booth] (“the mother”) and [Mr Page] (“the father”) have been unable to agree a number of interim parenting issues concerning their two children, [Child A] aged 11 and [Child B], who will turn nine in [early] 2021. The proceedings are complicated by the fact that Child B suffers from [Medical Condition A] and [Medical Condition B]. After Child B’s condition significantly deteriorated in mid-2020, he underwent [major surgery] at [Hospital A]. Happily, the procedure went well and Child B is expected to be discharged as an in-patient [soon]. Nevertheless, Child B will remain medically vulnerable for some months to come and could become very unwell again very quickly. Over the next few months, he will be required to attend on his interdisciplinary team at Hospital A on a very regular basis for monitoring and further treatment as required. Child B’s condition must be very carefully managed over the coming months, a process which is made even more difficult by the high levels of conflict that exists between the mother and the father.

THE PARTIES’ PROPOSALS

2For the purposes of this hearing, the ICL sought orders in the terms of an amended Minute filed by her on 3 December 2020. The ICL also relied upon an affidavit affirmed by her on 3 December 2020 and which she undertook at the hearing to file following the hearing, as well as a report provided by the single expert witness, [Dr A], dated 1 December 2020.

3In summary, the ICL sought interim orders to establish a regime for the children’s care upon Child B’s discharge from hospital and over the coming months during his recovery, including:

a) The children continue to live with the mother;

b) Child A continue to spend substantial and significant time with the father, largely in accordance with the usual arrangements that were in place prior to the current emergency arising;

c) Child B spend time with the father for very limited blocks of time each week and on the basis that as his health improves, time increase (including to overnight time) in accordance with the recommendations of Child B’s medical team from time to time;

d) Arrangements to both facilitate the exchange of relevant information concerning the children between the two parties, and limit the potential for conflict between the parties;

e) Arrangements in the event that Child B’s condition deteriorates and he is required to be re-admitted to hospital;

f) Arrangements in the event that Child A becomes unwell, given Child B’s current compromised immune system; and

g) Various injunctions designed to limit the children’s exposure to the parties’ ongoing conflict and resultant harm that the children may suffer there from.

4I was informed at the commencement of the hearing the parties agreed that orders should be made in terms of the ICL’s amended Minute, save that the father pressed for the children to spend additional time with him as follows:

a) For Child A and B to spend time with the father from 5.30pm to 8.30pm on Christmas Eve this year;

b) For Child A and B to spend time with the father for three hours every second Sunday (noting that it was already agreed that Child A would spend time with the father by herself during the intervening weekend);

c) For Child A to spend time with the parties during the long summer school holiday period on a week-about basis.

5By the conclusion of the interim hearing:

a) The father ultimately did not press his request for time with the children on Christmas Eve (noting that they would spend time with him on Christmas Day). That said, the mother offered, and the father agreed, that in the event that Child B is well enough on Christmas Eve, then the children would spend time with the father from 7.00pm to 8.30pm that night, with the intention that the father would take the children on an extended drive around Perth to see the Christmas lights. I considered that arrangement was appropriate and in the children’s best interests, particularly noting that I was informed by the ICL that a 7.00pm handover provides sufficient time for Child B to have dinner and take his medication.

b) The mother agreed to, and the father did not oppose, the Court making an order that Child A spend a one-week block with the father towards the end of the long summer school holidays, from Friday, 22 January 2021 to Friday, 29 January 2021. I considered that arrangement was appropriate and in the children’s best interests, given that it allowed a period of “settling in” for Child A and Child B upon Child B’s return home from hospital, whilst also providing Child A with the opportunity to spend a one-week block with the father, noting that she told the single expert that she enjoys the week-about arrangement during school holidays.

c) The only issue then remaining in dispute was the father’s proposal that the children spend time with him every second Sunday for three hours. That proposal was put on the basis that the father would attend the mother’s home and spend time with the children there, with the expectation that the mother would vacate the home for the duration of the visit (as she intends to do for the agreed visits on Tuesdays and Fridays). The mother opposed the additional time sought by the father because: (1) it would create additional opportunity for conflict between the parties in circumstances where the children and, in particular, Child B, needed calm; and (2) it would mean that the mother and the children would not be able to enjoy an uninterrupted weekend together. The ICL also opposed the additional time sought by father, and submitted that the father’s attendance at the mother’s home was invasive for her and increased the risk of conflict. In those circumstances, the ICL submitted it would be prudent to see how the family copes with two visits per week as agreed, before looking to increase time.

6I otherwise record that during the interim hearing, the father proposed that Child A should remain at home with the mother on the first weekend following Child B’s discharge from hospital ([omitted]), rather than Child A spending time with the father as would ordinarily be the case. I considered the father’s proposal was very gracious and child-focussed.

7I determined to pronounce orders at the conclusion of the interim hearing, on the basis that I would publish my reasons shortly thereafter. I adopted that course of action given Hospital A is waiting on orders from the Court as to the care arrangements for Child B, before permitting him to be discharged him from hospital. Although I was ultimately only required to determine a very limited issue on an interim basis, these Reasons are quite long. Given the complexities of this matter and the very difficult, uncertain and stressful circumstances currently facing the parties, I considered that longer form Reasons were appropriate in the circumstances.

THE EVIDENCE

8There are some factual disputes between the parties. In addition, much of the evidence before the court, including Dr A’s report and information provided by the children’s school and Hospital A’s interdisciplinary team, may not be wholly accepted by one or other of the parties and remains untested. These are matters that cannot be determined on an interim basis, particularly as neither the parties, the relevant educational and medical providers nor Dr A have been tested by cross examination. For the benefit of the parties what this means is that I cannot make any findings of fact where the evidence is in dispute. That will be the task of the judicial officer at trial, if the matter proceeds that far.

9However, at an interim stage I am able to undertake a risk assessment, doing the best I can with the untested evidenced that is before me and I have regard to the observations of the Full Court[1] in Jopson & Lilwall (No. 2) [2016] FamCAFC 262 at [56] and [58].

[1] Murphy J, sitting alone.

56. The notion that the judges of this court, or judges of the Federal Circuit Court are not haunted by the prospect of erroneous assessments of risk is as offensive as it is false. But assessments have to be made. Best interests involve a balance. Some assessments of risk are to be made after a trial and a careful assessment of the evidence. But, some assessments of risk have to be made at interim hearings in the absence of the deliberations inherent in a trial. If it were otherwise, there could never be an interim decision that did not default to the entire acceptance of a case that asserted risk. While like the medical adage, the court of course seeks to first do no harm, there is, as Fogarty J has remarked, always a risk and there are always concerns (see ‘Unacceptable Risk – A return to basics’ (2006) 20 Australian Journal of Family Law 249.) The issue is the extent of the risk and the things that might be done reasonably to alleviate (note, not eliminate, but alleviate) the risk.

…

58.Contrary to counsel for the appellant’s submissions, the issue before her Honour was not simply about risk as advanced by the mother. It was about the nature of the risk, the degree of risk, what might be done about the risk, and the balancing of assessed risks against the benefit of the child…”

BACKGROUND

10These Reasons assume that the reader also has knowledge of the oral reasons delivered by Magistrate Martino on 15 October 2020. Those reasons set out the relevant background facts to this matter, which I adopt for the purposes of these Reasons.

11Since Magistrate Martino delivered his oral reasons on 15 October 2020 the following relevant events have occurred.

12On 15 October 2020, Magistrate Martino made interim orders: firstly setting out the arrangements for the parties to spend time with the two children during “phase 1” of Child B’s in hospital treatment; secondly setting out each party’s obligations during phase 1 of Child B’s in-hospital treatment; thirdly setting out the arrangements for the parties to spend time with the children during the Christmas 2020 festive period; fourthly setting out handover arrangements; and finally making a number of procedural orders, including for the appointment of an independent children’s lawyer.

13The ICL came on the record on 26 October 2020 and subsequently attended a meeting with members of Hospital A’s interdisciplinary team on 12 November 2020 to gain a better understanding about Child B’s medical needs as he moves through the [treatment plan]. The team made it clear to the ICL that upon Child B’s discharge from hospital he will remain medically vulnerable for approximately six months (or longer should medical issues arise). The team supported Child B being discharged into the care of one parent to ensure continuity of medical care and that in essence, the team did not support a shared care arrangement during this period. I refer to the letter from the ICL to Hospital A dated 13 November 2020 in this regard (which is annexure B to the ICL’s affidavit). In that letter, the ICL also made a number of enquiries. I refer to this matter again shortly.

14At the next court hearing on 20 November 2020, Magistrate Martino made further orders by consent, including: firstly for the appointment of Dr A to urgently prepare a report; and secondly complex tracking the matter.

15On 27 November 2020 the principal of the children’s primary school provided a letter in response to enquiries made by the ICL via her letter dated 11 November 2020 and a follow up email dated 27 November 2020 (which documents are annexure A to the ICL’s affidavit). The salient parts of the school principal’s letter were as follows:

a) Child A commenced at the school in February 2014 and Child B in February 2016. Both children have always been well presented, clean and with all the appropriate equipment needed for the day.

b) Both children have always had a very positive attitude to school.

c) Both children have always had a very positive attitude to family. The principal reported that the children have an obvious loving relationship with their mother and their stepfather [Mr B], who are always present at class and school events such as sports carnivals, assemblies and productions when the children are involved.

d) When Child B was enrolled to start kindy, the mother attended at the school to train the education assistant and teachers in the processes involved in Child B’s care [Medical Condition A]. She continued to do this at the beginning of each year and was always available by phone and attended at the school immediately if she was asked.

e) The mother kept in close contact with the school as Child B’s health deteriorated in 2020, including bringing Child B to school so that he could have time with his classmates and teachers, providing updates on Child B’s progress and monitoring Child A’s progress and welfare.

f) The father has not been as visible around the school. However he did attend at the school office in August 2020 and met with the principal to seek information about education options for Child A in the event that Child B was required to travel [interstate] for [medical treatment]. A few days later the father also spoke to Child A’s teacher about educational options for the child.

g) Both children are popular with their classmates and have close friendships. Child A is mature and articulate and expresses her loyalty to her brother in a genuine and supportive way and this loyalty is reciprocated by Child B. They have a genuine loving relationship with each other.

h) Child A meets with the school chaplain on a weekly basis for support.

i) The principal described the mother’s understanding of Child B’s condition and medical needs as “profound” and that the mother shares her knowledge with the school carers regularly so that the school can remain alert and mindful of Child B’s responses and needs. The principal described the relationship between the mother and the school as “vital” in this regard.

16On 1 December Hospital A provided written responses to the ICL’s enquiry from three members of their interdisciplinary team: Child B’s clinical psychologist, social worker and doctor. In summary the salient parts of the responses were as follows:

a) The team considered that Child B should be cared for by one parent to ensure consistency in the care, including because it (1) reduced the risk of administration of medication errors; (2) reduced reporting inconsistencies; (3) reduced incongruence of observations; and (4) facilitated early recognition of subtle cues of un-wellness in Child B necessitating immediate medical attention.

b) The team considered that Child B should be cared for by one parent for a period of six months. However, this timeframe could change dependent upon Child B’s response to treatment.

c) In the first six months after Child B’s discharge from hospital, Child B would still require hospital visits at least two to three times a week for monitoring and ongoing treatment. He would also need to be administered medications multiple times throughout the day and night.

d) The team considered that Child B should spend 100% of the nights at the home of his primary parent carer, but that he could spend time at other locations during the day, provided that he remained well and did not attend public places where large crowds congregate.

e) If the parents were not prepared to accommodate handovers at their respective homes, then the team considered that handovers could be facilitated by a private supervision / handover service.

f) The team considered that provided Child A did not herself become unwell [omitted], she could continue to move between her parents’ homes once Child B was discharged from hospital without posing an unacceptable risk to Child B’s health.

g) The team considered it difficult to state with any certainty the estimated length of Child B’s [recovery] phase, other than to say that the approximate timeframe was six months and much depended upon Child B’s response to treatment.

h) The team considered that before Child B could return to a shared care arrangement, he would need to consistently demonstrate an omission of disease and any [post-treatment] complications, reduction in the multitude of his medications, and [the success of the treatment].

i) Child B had been observed by the clinical psychologist to seek comfort from both his parents during times of distress. Both parents had been observed to be competent in providing appropriate emotional support for Child B in the context of his distress related to medical procedures, a lengthy hospital stay and experience of pain.

j) Child B appeared to be aware of the conflict between his parents, albeit the clinical psychologist had never directly discussed the issue with Child B.

17Dr A provided his report to the Court on 1 December 2020. I am very grateful to the parties, the ICL and Dr A for all being able make arrangements for the report to be provided on an expedited basis. The salient parts of the report are as follows:

18To prepare his report, Dr A conducted interviews with the father and the mother and both parties completed the Personality Assessment Inventory. Dr A also made arrangements to visit Child B in hospital, spoke to Child A, spoke to the mother’s husband Mr B and also met with members of Hospital A’s multidisciplinary team.

19Dr A was provided with a briefing letter and documents from the ICL. He was also provided with the letter from the children’s primary school principal dated 27 November 2020, referred to above.

20Dr A also provided a summary of the information provided by the multidisciplinary team to him as follows:

a) Child B underwent [a significant medical procedure].

b) To prevent [the medical treatment failing], Child B has been put on [specific] medication for six months. Over time the [medication will be] lowered so that his [body can adapt].

c) The team was quite clear that the initial program needs to consider the first 100 days. Over this time Child B will going back to hospital two or three times a week for check-ups and treatment and if he becomes sick he will be hospitalised.

d) The team was adamant that Child B should be under a one carer structure who has all of the information available, and that he should be in one environment and should not have overnight time with the other parent. The team considered it critical for the first 100 days that all information is managed through one person. The importance of being in one environment is that subtle changes will be noted earlier and that can be a question of life saving intervention.

e) Child B is at a high risk of [further complications]. However at a practical level, this does not mean isolation or home confinement and there is scope for Child B to have time with the non-carer parent in open spaces or in the other carer’s home, [omitted]. He also needs to be strong enough to travel.

f) The team was very clear that Child A being in the home with Child B was quite acceptable and made recommendations in the event that she [became unwell]. The team did not recommend separating the siblings during Child B’s treatment period.

g) One of the points the team made very clear is that Child B’s progress is not lineal and will fluctuate. It was important to anticipate that Child B will be hospitalised and there needs to be a contingency plan in this event, so that the arrangements are clear and parties do not need to go to court again.

h) The team also explained that Child B will get sick very quickly when an infection comes and that if he showed an elevated temperature then he should go immediately to hospital.

i) The team expressed considerable concern about the pressure which Child B is under when the parents disagree in front of him. Information between the parents needed to be transferred separately and without arguments, so that Child B is not exposed to his parents’ disagreements.

j) Child B appeared to cope better when there were clear plans and things were predictable. Uncertainty has been stressful for him.

k) The team considered that both parents appear to be capable of meeting the child's needs and that information from the hospital is being communicated simultaneously, either face-to-face or with one parent attending via video link.

21Dr A considered that both parents were keen to be involved and were cooperative with the assessment process. Dr A considered that the mother presented as someone who seemed quite well-balanced and reasonable, but also very organised and a bit controlling around her organisation. The father presented as a somewhat practical based person. While in many respects he seemed reasonable, Dr A considered there was a degree of rigidity in his presentation and the father had some quite strong and times off centre views.

22Dr A considered that both parents were likeable, friendly people: he described the mother is warm and compassionate and the father as having an aspect of some rigidity of thought and tending to be a fairly blunt person. Neither parent showed major psychological dysfunction.

23Dr A considered that from the available information, until 2020 the father appeared to have been largely willing to let the mother take the lead in relation to educational and health issues concerning the children. Child B’s interdisciplinary team indicated that the father has been actively involved since Child B was hospitalised in 2020. The school principal indicated that up until August 2020 the school had not heard from the father and that all major medical information and issues were managed by the mother.

24Dr A described Child A as a very talkative girl who speaks her mind quite readily. On the other hand Child B is a very sensitive boy who does not want to say things which are distressing or upsetting to other people. He likes to keep the peace and make people happy.

25Both children were able to speak their minds quite readily, although Child B was reticent to say some things because he was worried about his father’s reaction. Child A described often having conflict with her father, where he tends to give her lectures around topics or gets upset around things which she says. Dr A opined that both children have a tendency to avoid telling their father what is on their mind, whereas they are more forthright in discussions with their mother.

26Dr A did not consider either child as being overly influenced in their views. Both children raised issues: Child A particularly said that her father told her about court processes and raised a number of factors which she believed the father should not be talking to her about.

27Dr A considered that Child B was very clear that his prime attachment and the person he feels most secure with is his mother, and living in his mother’s house is where he is happiest. Child B expressed that he likes visiting his father, but he did not like the way his father yells at his sister sometimes. Child B also expressed that he did not want his father to be cranky with him like he is with Child A.

28Child B was aware that his father wants them to live with him for half the time. Child B explained that the father does not talk too much to him about arrangements, but that the father does talk more to Child A. Child B also said that if his father asks, he gives a vague answer and does not tell his father directly what he wants.

29Child A was clear and definite that he would rather live with his mother and Mr B after he is discharged from hospital, as that is where he would feel most comfortable.

30Towards the end of the interview Dr A asked Child B if there was anything that would help him feel better. Child B responded: “They’re fighting a lot. I don’t like having to listen to them fight”. When Dr A asked Child B what was happening in the fights, Child B’s perception was that: “Mum is not really fighting, its dad yelling at mum. It’s often about my [treatment]” [omitted]. Child B said that it makes him feel really sad.

31Dr A considered that Child A was very mature for her age. Overall Dr A considered that she was coping well and that the only area where she described having any difficulty and getting upset was regarding the drive to the father’s house on Thursdays. She preferred to stay in her local area on Thursdays for dinner with her father and not drive back to his home.

32Child A spoke very positively about her relationships with the mother and Mr B. She was initially somewhat negative about her relationship with the father, but was later able to identify positive aspects.

33Child A was adamant that she likes the current 9/5 live with and spend time with arrangements and was adamant that she did not want to move to a week about arrangement during school terms.

34Dr A considered that when it came to understanding the needs of the children, the mother was really switched on and her understanding matched very closely with the children’s views. The father’s view of what the children thought was quite different to what they actually expressed. Dr A particularly noted that both children expressed some degree of fear of letting their father know what they thought, and both indicated they had found their father to be grumpy and at times reactive.

35Dr A considered that the biggest single risk for the children is the conflict between the parents. The children’s perception is that it is the father who generates the conflict towards the mother and also generates the conflict towards them. Dr A was concerned about Child B’s exposure to further conflict between his parents during the recovery phrase and when handovers are taking place between the parties, for example at the mother’s home rather than at school.

36Dr A considered that the children were very secure with the mother’s husband Mr B and that he is a safe attachment figure for the children. Dr A considered that both children and particularly Child B were securely attached with Mr B, and more so than to the father.

37Although Dr A considered that both parents were quite competent in recognising the children’s needs, he considered there was some suggestion from the children’s descriptions that the father’s reactions are less than optimal and that the children have a greater level of security and emotional attachment to their mother, meaning that she is better meeting their psychological needs. Although the interdisciplinary team indicated they thought both parents were capable of meeting the children’s needs, the information from both the school and in general indicated that the mother is the one who is more highly attuned to Child B’s medical needs and has been the parent more actively involved with professionals and agencies historically. Dr A considered that the mother has done a very good job in this respect.

38Dr A set out his recommendations at paragraph 79 onwards of his report as follows:

79.In my opinion, the evidence would clearly support the mother and [Mr B] being the primary carers for [Child B] in the recovery phase, in that this is where he would be most psychologically secure and that the mother has, historically, has been the most active in terms of meeting his needs across the range of areas especially medical areas.

80.The hospital is very clear that there should be no overnight time for [Child B] in the hundred days. However, they consider that it is possible for him to have visits to his father, including to the father’s home, however, he needs to be well enough for this to take place, and it should not involve overnight time. Given the father is ½ hour drive each way, [Child B] needs to be at a recovered point sufficient for the drive. Therefore, I would be recommending that at least for the first month at home, the father has two prescribed visits per week (bearing in mind [Child B] is also going to be going to hospital two or three times a week). These visits, ideally, should take place on the nonhospital days and it should be in a park nearby all the mother’s home until he is well enough to go for visits. However, if it is possible to manage the conflict between the parents when [Child A] is being returned from her visits, then contact should take place (given it will soon be school holidays this will be happening months).

81.Both of the children are quite adamant that equal about time is not something that they want now or in the future. Their attachment and relationships are such that I believe it would not improve their psychological wellbeing. Therefore, my recommendation, both through the recovery period and once [Child B]’s health has re-stabilised, is that time continues on the arrangement they have had to date; that is, the Tuesday overnight and every second weekend, the intervening Thursday to only take place without the travel, but the school holidays to continue to take place on a week about basis.

82.I would not recommend that week about occurs for this Christmas school holidays, rather, I would recommend maintaining the normal term time cycle so that [Child A] is not away from her brother for prolonged periods.

83.The parties need a hospital plan if [Child B] is readmitted to hospital. I do not have a strong opinion as to how that should be, probably making it alternating nights or keep it how it has been over the [omitted] period.

84.As indicated above, the court orders should be very specific that the priority should be hospital if [Child B] spikes with a temperature or shows other reactions, and either the parent who is the prime carer or the alternative carer should be going directly to hospital and then seeking to notify the other party afterwards.

85.I understand that the parties normally rotate Christmas Eve and this year should be the father’s Christmas Eve. I consider it inappropriate for the children to be separated and, by default, if the court accepts my recommendation of the mother being the primary carer through the recovery period, then a Christmas overnight should be with the mother. If [Child B] is well enough, then a visit on Christmas Day should be organised.

…

87.I believe that both parents should be involved in the decisions around the well-being of the children. However, for the hundred day period, I would recommend that the carer parent is given sole parental responsibility for medical decisions, but the court order allows both parents to be informed jointly of all medical decisions. In an emergency, it is important that one parent is acting without the complicating factor of another parent having alternative views.

88.There is what I would loosely call “the [Medical Condition A] war” around the transfer of information. As I understand it, historically, the mother manages [the treatment]. [Omitted]. There is now a dispute about whether that information [about Medical Condition A] should be travelling in both directions and information which the father used to provide is now being changed in the circumstances. Bearing in mind that these are multiple tests a day and night, in my opinion, if the court is maintaining primary care with the mother, then she needs the detail, less detail is required by the father. I also wonder whether there should be some use of technology that the data is recorded and are made available to both parents, but I do believe [at] some point there needs to be an end to “the [Medical Condition A] war”.

89.This is a case where there is a sick little boy who is saying that his biggest worry is the arguing between the parents and particularly his perception is his father shouting or getting angry at his mother. This has to stop. I appreciate that this is an emotionally distressing time and that both parents are anxious and keen to be involved. I also accept that they are, unfortunately, unlikely to be able to resolve these issues, but if the behaviour does not diminish, then it is critical that the priority is on [Child B] rather than the father, and it may mean that he will lose time and opportunity if this continues. (emphasis added)

90.The medical specialists indicated that one of their largest concerns in this case is that the situation is now able to be defined in blocks of time, but can vary rapidly as health issues change. The difficulty with court orders is that they tend to be rather rigid, in a situation where flexibility is required. I would recommend the continuation of an Independent Children’s Lawyer. While I appreciate the court cannot delegate authority, allowing the Independent Children’s Lawyer to arbitrate with some type of authority when there are urgent decisions to be made, would certainly be helpful, at least over this 100 day period where crises are likely.

91.Finally, I would like to add that over the short to medium term, the needs in this case are to take the stress off both parents, and the issues such as the long-term matter of week about should be told by the court to not occur for the next 12 months. In other words, make a very clear statement that the court will not entertain visiting this issue under these current circumstances and wait for everything to stabilise, to take the stress out of the situation. I reiterate that my opinion based on my interviews with the children and my observation of the family is that it is not in the children’s interest and will not improve their well-being to introduce equal at this time. However, it is the father’s right to pursue this if he chooses to, but I believe it is important to dampen the situation for at least 12 months.

APPLICABLE LAW

39The parties’ respective parenting applications are made pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”). In deciding whether to make a particular parenting order, the Act directs me to regard the best interests of the child as the paramount consideration. Section 60CC sets out how I determine what is in the child’s best interests.

40I will consider only the primary and additional considerations which are relevant to the issues in this interim decision. If I have not referred to a consideration, it is because I take the view that it is not relevant to this decision and/or because there is simply insufficient evidence and/or engagement by the parties with the consideration for me to make any findings.

PRIMARY CONSIDERATIONS

41I am satisfied on the available evidence that the children have close and loving relationships with the parties. In particular, I am satisfied that the mother has been the children’s primary carer for most, if not all, of their lives, she is highly likely to be the children’s primary attachment figure and the children feel most secure in her care. I am satisfied that there is a real benefit to the children in having a meaningful relationship with the mother and with the father.

42I am satisfied that the biggest single risk to the children is the conflict between the parties and that the children’s perception is that it is the father who generates the conflict towards the mother and towards them. It was not in dispute, and I accept, that Child B’s recovery will not be assisted by further exposure to the conflict between the parties.

ADDITIONAL CONSIDERATIONS

43Child A is 11 years old. She was described by her school principal and by Dr A as a mature child. Child B is currently eight years old, turning nine [soon]. Both children expressed clear and firm views about their preferred living arrangements, in the short and long term. Neither Child A nor B wished to live in a week about arrangement, save that Child A reported to Dr A that she did enjoy the week-about arrangement during school holidays. Rather, both wished to continue to live with the mother and spend time with the father largely in accordance with the existing arrangements, Child B’s health permitting. On the available evidence, I am not satisfied that the children’s views about these matters have been unduly influenced by any party, but rather are a consequence of the children’s lived experiences of their mother and their father. Having regard to the children’s current ages and likely stage of development, I am satisfied that I should give some weight to their views in my decision.

44I am satisfied that the children love their parents and that in turn, each of the parents love their children very much. Both children view their relationships with the mother in very positive terms. However, both children expressed some concerns about aspects of their relationships with the father. In particular, they regarded him as grumpy and reactive at times and Child B in particular was reticent to share his views with his father about certain issues for fear of the father’s reaction.

45I am satisfied that both children have close and loving relationships with the mother’s husband Mr B and that both children are securely attached to Mr B.

46I am satisfied that the children have very close and loving relationships with each other and undoubtedly are an enormous source of emotional support to each other.

47Save for the following matters, I am satisfied that both parties are able to properly meet the children’s needs.

48 Firstly, as compared with the father, I am satisfied that the mother has demonstrated a very high level of competence in meeting the children’s needs over an extended period of time. In particular, she has assumed the prime responsibility for managing the children’s educational and health needs and to paraphrase the words of the school principal, has played a vital role in this regard. On the other hand, on the available evidence, the father has only taken a more active involvement in the children’s educational and health issues since Child B’s hospitalisation in [omitted].

49 Secondly, I am satisfied that the father’s ability to meet the children’s psychological needs is less optimal than that of the mother. In particular, the children have identified a number of issues regarding the father that have distressed them and/or made them more reticent to share information with the father. This includes: (1) the children’s perception that it is the father who generates the conflict with the mother and yells at the mother; (2) Child B’s feelings of sadness when he is exposed to the parties’ conflict; and (3) the children’s perception that the father gets grumpy and yells at Child A, Child B’s concerns that the father may also yell at him and Child B’s reticence to share his views about certain matters with the father as a result.

CONCLUSIONS

50In conclusion, I am not satisfied that the children should spend the additional Sunday time with the father as sought by him, for the following reasons:

a) Firstly, I accept the ICL’s submission (which was echoed by the mother) that the father’s visits with the children in the mother’s home are invasive for her and create an opportunity for conflict that may negatively impact Child B’s recovery. Whilst the mother and father have agreed to a regime that provides for visits in the mother’s home on Tuesdays and Fridays, I am not prepared to extend that arrangement at this juncture, having regard to: (1) the level of conflict between the parties; and (2) the parties’ inability to communicate, co-operate and co‑parent. I consider that two in-home visits per week strikes the right balance between minimising the risk of the children’s exposure to conflict between the parties (and noting that the mother intends to vacate her home during the visits), whilst affording the children (and in particular, Child B) regular physical contact with their father.

b) Secondly, although I sympathise with the father’s desire to spend as much time with Child B as possible, particularly in light of how sick Child B has been and the risks to his health moving forward, I am satisfied that Child B’s best interests will be met by arrangements that are focussed on and promote his recovery, as opposed to being overly concerned with the volume of time spent with either party.

c) Thirdly, the arrangements proposed by the ICL include provision for: (1) Child B to spend time with the father for 20 minutes during each handover for Child A that occurs at the mother’s home; and (2) Facetime between Child B and the father on Sundays between 5.00pm and 6.00pm. In light of those arrangements, together with the in-home visits on Tuesdays and Fridays each week, I am satisfied that Child B and the father will be able to maintain very regular contact that promotes their relationship, whilst also being sympathetic to Child B’s need for stability and calm to promote his recovery.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

KV

Associate

9 DECEMBER 2020