C and S

[2007] FCWA 27

JURISDICTION:

FAMILY COURT OF WESTERN AUSTRALIA

ACT:	FAMILY LAW ACT 1975
LOCATION:	PERTH
CITATION:	C and S [2007] FCWA 27
CORAM:	THACKRAY J
HEARD:	18-22 JANUARY 2006
DELIVERED:	22 JANUARY 2007
FILE NO/S:	PT 1229 of 2004
BETWEEN:	C

Applicant/Mother

AND

S
Respondent/Father

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Catchwords:

CHILDREN - With whom a child lives - Separation of siblings; CHILDREN - With whom a child spends time; Eldest 14-year-old boy living with father; 12-year-old boy and 10-year-old boy living with mother; Father better placed to meet children's emotional needs; Order that all three boys live with father

Legislation:
Family Law Act 1975, Part VII
Family Law Act 1975, s 60B
Family Law Act 1975, s 60CA
Family Law Act 1975, s 60CC
Family Law Act 1975, s 68P
Family Law Amendment (Shared Parental Responsibility) Act 2006
Restraining Orders Act 1997

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Category: Not Reportable

Representation:

Counsel:

Applicant:	Self Represented
Respondent:	Ms E Brownlie

Solicitors:

Applicant:	Self Represented
Respondent:	Clairs Keeley

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

Nil
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1 In this case, it is important to give my decision before the start of the new school year. Accordingly, rather than reserve my judgment, as I would normally do with a matter of such importance, I will give my reasons immediately. I intend to make orders along the lines proposed by the Independent Children's Lawyer.

2 The proceedings were commenced a very long time ago in March 2004. They concern three boys: [Peter], aged 14, [John], aged 12, and [David], aged 10.

The parties and their relationship

3 The applicant in the proceedings is the boys' mother, [Ms C], who is aged 40 years. She lives in the former matrimonial home of the parties in [the suburbs] with the two youngest boys, [John] and [David]. Regrettably, she had no legal representation at the trial, but was given permission to have limited assistance from her church minister.

4 The respondent in the proceedings is [Mr S], who has just turned 46 years of age. He lives in rental accommodation in [a nearby suburb] with the eldest boy, [Peter]. There is some doubt whether he is the biological father of [Peter], but in every respect he has been the boy's father and there is no doubt he is the father of the two younger boys.

5 [Ms C] comes from [Asia] and [Mr S] comes from the [the UK]. They have lived in Australia for many years. They met in 1989 and were married in 1992. They separated in July 2000, although they spent a few weeks living together in the former matrimonial home in 2002.

Orders sought

6 The orders sought by [Ms C] are contained in her Papers for the Judge. She wants [Peter] to come home to live with her and with the other two boys. She proposes that [Mr S] spends time with the boys every alternate weekend, but only from Saturday morning to Sunday afternoon, as well as on special occasions.

7 When [Mr S] first replied to [Ms C]'s application in 2004, he sought orders for all three boys to live with him. Along the way,

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he changed his mind and sought only an order for residence of [Peter]. He also sought more extensive contact with the other boys than he had been exercising to date. After considering the updated recent report of the Single Expert, [Mr T], [Mr S] changed his position. The orders he sought at trial were contained in his Papers for the Judge, in which he proposed that the boys all live with him. He proposed that [Peter] spend time with his mother in accordance with his wishes. He otherwise proposed that the two younger boys spend time with [Ms C] each alternate weekend from Friday afternoon to Monday morning. In addition, he proposed that the younger boys spend time with [Ms C] each Wednesday afternoon and half of all school holidays as well as special days.

8 The orders sought by the Independent Children's Lawyer were contained in a Minute handed up at the commencement of her closing submissions this afternoon. She proposed that the children all reside with [Mr S] and that after a short transition period, the youngest two children spend significant time with [Ms C]. This included not only a full weekend every alternate weekend and half the holidays, but also an overnight visit every Wednesday. The Independent Children's Lawyer proposed that [Peter]' contact with his mother be in accordance with his wishes.

The law

9 The proceedings fall for determination under Part VII of the Family Law Act 1975, as amended by the Family Law Amendment (Shared Parental Responsibility) Act 2006. In making my decision, I will therefore be guided by the amended objects of Part VII and the principles underlying them. Section 60B provides:

“60B Objects of Part and principles underlying it

(1)

The objects of [Part VII] are to ensure that the best
interests of children are met by:

(a)	ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)	protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

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(c)	ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)	ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

(2)

The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

(a)	children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)	children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)	parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)	parents should agree about the future parenting of their children; and
(e)	children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”

10 In deciding whether to make a particular order, section 60CA directs the Court to regard the best interests of the children as the paramount consideration. Accordingly, it is a consideration of the boys' best interest that will be the final determinant. Section 60CC sets out the matters I must take into account in determining what is in the children's best interests.

Relevant background

11 I do not propose discussing all of the many incidents that have occurred between [Ms C] and [Mr S], both before and after they separated. They had a very volatile relationship and each of them has a different recollection of many of the things that have occurred over the years.

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12

I can say that I generally found [Mr S] to be a more reliable historian than [Ms C] and where there was conflict in their evidence, I generally preferred his version. In coming to my assessment of credibility, I have not overlooked the fact that [Mr S] acknowledged forging [Ms C]'s signature in order to obtain her medical records, which of course was entirely improper. I have also not overlooked the fact that [Mr S] did not deny [Ms C]'s allegation in relation to his criminal record.

13 The most important background facts are these:

• [Ms C] was the primary caregiver of the children prior to separation, although [Mr S] had a fair degree of involvement in their care, which he was able to manage because he usually worked only in part-time or casual positions. He also undertook at least a fair share of the household duties. He did not deny [Ms C]'s allegation that in 1997 he left the family home for a period of time when he was studying, leaving the children in [Ms C]'s full-time care.

• [Ms C] moved out of the former matrimonial home in July 2000 into rental accommodation nearby in [the suburbs]. [David] went with her, but [Peter] and [John] initially remained with [Mr S] whilst he continued with renovations to the former matrimonial home. The parties continued a relationship of sorts, with [David] living full-time with [Ms C] and the other two boys spending part of the time in the home of each parent.

• In June 2002, [Ms C] moved back into the former matrimonial home. About four weeks later, [Mr S] decided to move out, leaving all three boys with [Ms C]. He continued to see the boys regularly, although the extent of his contact was subject to [Ms C]'s whim.

• In December 2003, [Peter] came to live with [Mr S]. [Ms C] has ever since maintained he was kidnapped, but I am satisfied that [Peter] was having conflict with his mother and elected to live with his father of his own free will. He was at that stage 11 years of age, an intelligent boy, and well able to decide with whom he would prefer to live.

• Soon after [Peter] left [Ms C]'s home, the parties entered into a written agreement that [Peter] would live with [Mr S] and the younger boys with [Ms C]. The agreement, which is annexure “A” to [Mr S]'s trial affidavit, contained what I regarded as a very sensible contact arrangement which would,

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for example, have included all the boys being together throughout school holiday periods. [Ms C] claims she entered into this agreement under duress, but I was not persuaded this was the case; see, amongst other things, the content of the highly abusive telephone message she left on [Mr S]'s answering machine on 15 December 2003.

• In December 2003, [Ms C] also obtained a violence restraining order against [Mr S] on an ex parte basis. Notwithstanding this, she visited [Mr S] and even went out with him. She had sought the VRO against [Mr S], even though she had been in the habit of telephoning him incessantly. She did not deny, for example, that she rang him 571 times in 2003, once calling 27 times in the same night.

• In the beginning of 2004, [Ms C] terminated contact between [Mr S] and the younger boys. He did not see them for many weeks, which I accept was devastating for [Mr S] and greatly upsetting for the boys.

• [Ms C] commenced these Court proceedings in March 2004. An agreement was reached in relation to interim contact with all three boys. These orders were designed to ensure the boys spent each weekend together. Initially, [Ms C] allowed [Mr S] more contact than that to which he was entitled under the terms of the order, but this only lasted a few months. In May 2004, [Ms C] agreed to withdraw the VRO in return for an undertaking given by [Mr S]. I accept she did so only after unsuccessfully seeking to use the VRO as a bargaining chip in the negotiations.

• In July 2004, a Family Report prepared by a counsellor in the Family Court was published, in which [Peter] said “I sort of want to live with my dad”.

• In 2005 there was once again a long, enforced break in [Mr S]'s contact with the two younger boys. This time it seems to have lasted for about four months whilst [Mr S] pursued contravention proceedings. This break in contact meant not only that the boys did not see their father, but they also missed out on seeing their grandparents, whom I am satisfied they enjoyed visiting.

• In March 2005, [Ms C] obtained another VRO against [Mr S], but on this occasion the VRO also prevented him from coming into contact with the younger children, save as expressly

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permitted by the terms of Family Court orders. This VRO will expire in March 2007.
•	On 8 April 2005, [Mr S] attended the children's assembly as he had been doing during the time he had been denied contact with them. On the day in question, he had reason to believe [Ms C] would not be in attendance, but this turned out not to be the case. [Mr S] had also heard certain advice given to him by the Magistrate who granted the VRO and considered he would not be in breach of the order by attending the assembly. Regrettably, the upshot of this visit was that [Mr S] was arrested for breaching the VRO and spent the night in police custody. [Mr S] ended up with a spent conviction as a result of this most unfortunate set of circumstances. Regrettably, he was also charged for breaching the VRO when he went to see [David] having a swimming test, even though [Ms C] was not present.
•	In May 2005, after being denied contact for many months, [Mr S] agreed to reduced contact periods with the children in the hope he would at least be able to see them. His time with [David] was limited to just five hours every second Saturday under the supervision of [Mr S]'s mother.
•	In November 2005, the contact times were changed to allow [David]'s contact to be gradually increased to overnight contact, subject to his wishes.
•	There was a lack of specificity in the evidence about the contact arrangements in the last 12 months. The overall impression I gained was that the younger boys generally go on contact with some occasional, probably unwarranted, denials of contact. [Peter] has gone on contact as well. There have been some occasions when he has apparently not been prepared to go. Not infrequently, [Peter]' contact visit has been terminated early following a dispute between him and his mother.

The boys' best interests

14 I turn now to the matters I am required to take into account pursuant to section 60CC of the Act. I will deal first with what are called “the primary considerations”.

the benefit to the child of having a meaningful relationship
with both of the child’s parents
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15 I regard it is of

critical importance to the boys that they have a meaningful relationship with both their parents. Both parents love the children very much and have a great deal to offer them.

the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

16 Regrettably, the boys have been exposed to a great deal of conflict and violence between their parents. [Mr S] correctly described the situation in the parties' home as being like a "war zone with the children being the innocent bystanders." I am satisfied both parties behaved very badly towards each other, with each of them on occasions causing bodily harm to the other.

17 There is now a great deal of research to demonstrate that exposure to violence has a serious, detrimental effect on children. It is easy to hypothesise, for example, that the problems [David] in particular has experienced over an extended period of time are a result of the conflict to which he has been exposed.

18 I consider it is vital for the boys' healthy development to ensure they are never again exposed to this sort of behaviour. Fortunately, it seems that they have not recently seen their parents in physical combat, but they have continued to be exposed to their high level of conflict, which I am sure is almost as distressing to them. It is important that both parents recognise that the damage that they have already done to the children will not disappear quickly and, in fact, may be irreparable. The damage to the boys is nevertheless likely to be reduced to some extent if both parents in the future behave towards each other in a civilised fashion.

19 [Mr S] has undergone domestic violence counselling. Whilst I fully understand [Ms C]'s scepticism, having been the victim of his violence in the past, I am satisfied that he has benefited enormously from that counselling. I consider it unlikely that [Mr S] will in the future behave in the way he has in the past. He acknowledges this behaviour and has apologised for it both to [Ms C] and the children and, importantly, does not seek to excuse it other than by noting that he was also subject to violence and significant provocation. Importantly, [Mr S] is very alert to the fact that there are likely to be ongoing issues for the boys as a result of their exposure to their parents' violent and aggressive behaviour.

20 Whilst I have no doubt she has made a lot of progress over the last couple of years, [Ms C], in my view, still has significant anger

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management problems. My impression is that she is able to present herself as a pleasant, cheerful and polite woman when she is in an environment where she is not challenged in any way. This is evidenced by the affidavits filed on her behalf, the authors of which were not required to be cross-examined.

21 However, [Ms C] appears to me to have a pronounced tendency to flare up when crossed especially, as [Mr T] says, when she is dealing with people with whom she has or has had a close emotional attachment. I am concerned that until she learns how to moderate her behaviour, the boys are at some risk of being exposed to at least psychological harm.

22 I do not accept there is any basis for [Ms C]'s concern that the children are at risk of any abuse in [Mr S]'s care. Despite her denial, I accept that [Ms C] did suggest last year that [Peter] was whipped and gang raped when he was in [Mr S]'s care. I am perfectly satisfied no such thing ever happened and that what [Ms C] observed on [Peter]'s body was likely to be nothing more than stretchmarks.

Additional considerations

23 I turn now to what are called the additional considerations, some of which in my view are of considerable importance in these proceedings.

any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

24 [Mr T], the Single Expert, has interviewed the boys on two different occasions — the first time in 2005 and then again recently in December 2006. [Mr T] said that when he saw [Peter] in December 2006, he confirmed he is happy living with his father and complained about how his mother badgers him about his father and about coming home to live with her. I am satisfied that [Peter], who appears usually to be a fairly quiet and reserved young man, has a firm desire to remain living with his father.

25 When [John] saw [Mr T] in 2005, he was satisfied with the amount of time he was seeing his father at that time. [David] told [Mr T] he would like to see his father a lot more. When they next spoke with [Mr T] in December 2006, [John] and [David] were positive about their relationship with their father and the time they spend with him. The only concern at all they expressed was being

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left alone in the care of [Peter], but I am satisfied this occurs for
only fairly short periods of time.

26 In 2005, both of the younger boys had indicated to [Mr T] that they wanted to continue living with [Ms C]. However, they were more guarded when speaking with [Mr T] about their mother in 2006. [John] described everything about his mother as being “good” and offered no criticisms of her. [Mr T] said that [David] tended to echo was [John] said. I am satisfied that both the younger boys would be aware how upset their mother would be if they said anything negative about her and I suspect they would fear some consequences if they spoke too frankly. I consider it highly likely that the boys would be quite happy to reside with their father, although they would be very concerned about the impact on their mother in the event they left her care.

27 Although it was not strictly in evidence before me, the descriptions given this afternoon of what occurred last Friday evening do not in any way persuade me that the boys are truly afraid of their father or would be unwilling to live with him. The description I heard was of two young boys who reacted in a way they thought best to their mother’s entirely understandable, but highly regrettable, emotional response to the possibility of them leaving her care.

28 Whatever may be the views of the younger boys now, I consider it is fairly predictable that as they mature they are much more likely to wish to live with their father. I accepted [Mr S]'s evidence that there are already changes in the family dynamics, with [John] now identifying more with [Peter] than with [David]. I suspect that [John] will probably develop a stronger desire to live with [Mr S] as he matures, not only because his father's approach to parenting is likely to be more acceptable to him, but because he will also increasingly want to live with [Peter], with whom he is developing a closer association.

29 It is important also to record the boys' views about the time they like to spend with each other. I accept [Mr S]'s evidence that [Peter] is resentful of the fact that he does not spend as much time with his brothers as he would like. [John] told [Mr T] in the 2005 interviews that he misses [Peter] and would like to see him more. [David] told him that he enjoys the company of both his brothers and wanted to gradually increase the amount of time he spends in his father's home where [Peter] was then living. I consider it likely

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the boys would enjoy spending as much time with each other as
possible.

the nature of the relationship of the child with:

(i) each of the child’s parents; and

(ii) other persons (including any grandparent or other relative of the child);

30 [Ms C] has no family in Australia. [Mr S]'s father lives near Perth. He has no other family here. The most important relationships to consider, therefore, are those the boys have with their mother, their father and with their father's girlfriend. I find that [Ms C] had a more difficult relationship with [Peter] than she had with the younger children prior to [Peter] leaving her home in December 2003. I accept [Mr S]'s assertion that [Peter] bore the brunt of [Ms C]'s anger, probably because he was the oldest child and became less prepared to bend to her will as he matured.

31 I accept that prior to [Peter] leaving her home, [Ms C] had, amongst other things, spat in [Peter]'s face and disciplined him with unnecessary force. I accept that since [Peter] has gone to live with his father, she has often behaved in a way that has damaged their relationship, including refusing to see him on some occasions when he wanted to see her. Her behaviour has resulted, for example, in [Peter] being reduced to tears, as he was on one occasion in October 2006. Mr [Mr T] described the relationship between [Peter] and [Ms C] in 2005 as being "somewhat distant".

32 [Ms C] believes that [Mr S] deliberately allows [Peter] to stay up late before contact visits because he spends a lot of his time with her sleeping. Alternatively, she considers it is a sign that [Peter] is depressed. I agree with [Mr T] that this is much more likely to be an avoidance mechanism which allows [Peter] some breathing space away from his mother's badgering whilst he is in her care.

33 I find that the boys have a very good relationship with their father. If he is even half as good a father as he seemed from hearing his evidence and observing his demeanour, he would be a very good father indeed.

34 I do not consider there is any issue arising from the fact that [Mr S] may not be the biological father of [Peter]. In some respects it is unfortunate that [Ms C] chose to tell [Peter] that [Mr S] may not be his father. I am satisfied [Mr S] handled this delicate situation with great sensitivity and that from his and [Peter]'s point of view, there is absolutely no issue. [Peter] has never known any

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other person to be his father. Furthermore, from the legal perspective, I accept the submissions of Mrs Brownlie that [Mr S] is legally presumed to be the father of [Peter].

35 I have a few more concerns about the nature of the boys' relationship with the husband's girlfriend, [Ms V]. Ms [V] has known the parties since 1997 when they lived [close-by]. She was a regular visitor to the home and enjoyed a good relationship with all the boys. She has two children, one of whom is much the same as [Peter].

36 There was no mention of Ms [V] in [Mr S]'s lengthy trial affidavit and Mr [Mr T] was not asked to speak to the boys about their relationship with her. The only evidence about how well they get on was self-serving. Although I accept the boys got on very well with Ms [V] prior to the separation, it seems possible to me that they may have some mixed feelings, now that she has turned from being one of their mother's closest friends into the possible future wife of their father.

37 [Mr S] made clear in discussing his relationship with Ms [V] that his priority was his children. I nevertheless fear that there is the prospect of some tension between him and Ms [V] if putting the children first ends up in him deciding not take his relationship with her to the next stage. If, indeed, Ms [V] does end up living with the boys, the arrangements are going to have to be handled with considerable sensitivity.

the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

38 Notwithstanding [Ms C]'s views to the contrary, I am satisfied that [Mr S] will do his utmost to encourage a good relationship between the boys and their mother. He has a surprisingly positive attitude towards her. I am satisfied that he is able to see past her personality problems and appreciates the many good qualities that she possesses. He has also facilitated contact arrangements for [Peter] with his mother outside the ordered times, including, for example, Chinese New Year in 2006, [Peter]'s birthday in 2006 and an unscheduled visit for a couple of nights in October 2006.

39 I agree with the sentiment expressed by [Mr S] in his affidavit that the responsibility for promoting a good relationship between [Peter] and [Ms C] in the future will largely fall on [Ms C]. If she will stop badgering [Peter] when he goes to visit her and stop denigrating his father, I consider it is still possible their relationship

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can be salvaged. It is particularly important that she does not blame [Peter] for the fact that the two younger boys will be mainly living with their father in the future.

40 I am far from satisfied that [Ms C] will encourage a close and continuing relationship between the boys and their father. She is still very angry with [Mr S], even though their relationship ended many years ago. As [Mr T] said in his report:

“Ms [C] continues to focus on the past and there is very little that occurs that the mother cannot place blame or sinister interpretations on that does not place Mr [S] in a bad light. She continues to take no blame for the relationship breakdown or any of the problems the boys have, blaming all on Mr [S].”

41 I am satisfied that [Ms C] denigrates [Mr S] when she has the boys with her. She even did so in the presence of [Mr T] in November 2005. Whilst a lot of the time she ensures that the younger boys come to see their father, on other occasions in the past she has not ensured that contact takes place as it should and this has resulted in lengthy separations between father and sons. I am concerned that this might happen again once these proceedings are out of the way.

the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i) either of his or her parents; or

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

42 If orders are made as proposed by the Independent Children's Lawyer, the boys will spend much less time than they have been used to having with their mother, but on the other hand the boys will be able to spend much more time with each other. Whilst they have had the usual rivalry that exists in sibling groups, I am satisfied living together on a full-time basis will be a very good thing for all of the boys.

the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

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43 This factor is of no significance.

the capacity of:

(i)	each of the child’s parents; and
(ii)	any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional
and intellectual needs

Physical needs

44 I am satisfied both parents are capable of providing for the children's physical needs, although it seems conditions would be rather cramped in the former matrimonial home if [Peter] were to return to live there full-time. Given the restrictions now being imposed by government on supporting parents, it may be that both parents will have to work in the future. I accept that [Mr S] will be largely able to arrange any work around his commitments to the children and if he cannot, he will make good arrangements for their care.

45 In considering [Mr S]'s ability to provide for the children's physical needs, it is important to consider [Ms C]'s concerns about his drug use. Whilst I accept that [Mr S] consumed marijuana during the parties' relationship, I find that he has not done so for many years. It seems also that he may have had a problem with alcohol during the marriage, but this problem also appears to have been overcome.

46 In considering his ability to provide for the children's physical needs, it is also important to note that [Mr S] has in the past been diagnosed with Hepatitis C, probably as a result of intravenous drug use when he was a teenager; however, his condition is well controlled and he is in good health. He did suffer from a serious problem with carbuncles, but this has been resolved with appropriate treatment. His health is not an issue in relation to his ability to care for the boys at the present time.

Intellectual needs

47 Both parents struck me as being intelligent people who have a high regard for the importance of a good education. Both are therefore likely to continue to provide well for the children's intellectual needs. [Peter] came to live with his father in December 2003 and he was dux of his primary school the following year. I

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have no doubt that this was the result of the efforts and encouragement of both of his parents, but it also demonstrates that [Peter] continued to thrive academically following the change of residence. He also continues to achieve at a good level in high school.

48 Both [John] and [David] had a good year in 2006. The school principal noted that [John], in particular, had an exceptional year and was showing great promise for the future. Once again, this is in my view a credit to him and both his parents. There is no reason to think either of the younger boys will not continue to do well at school if they moved to live with their father. I also consider [Mr S] is likely to deal sensibly and sensitively with the issue which could very well arise in the event [David] does not perform as well academically at high school as each of his older brothers.

Emotional needs

49 I am satisfied that [Mr S] is capable of providing for the boys' emotional needs now that he has overcome his problem with anger and violence. He struck me as a calm and sensible person. I have rarely had before me a father with such an ability to identify and sensitively discuss issues relating to the care of his children. I was particularly impressed by his ability to differentiate between his three sons and to recognise their individual characteristics and needs. He certainly does not perceive his sons as what might be called “a job lot”.

50 I am satisfied that [Peter] is enjoying a normal and well balanced lifestyle in his father's home. He is doing well at school, while at the same time enjoying his leisure time in the way modern teenagers do. He has friends come over and he visits his friends. His father is quite right to say that a boy of his age cannot and should not be monitored 24 hours a day. Because he is not continually monitored, it is almost inevitable that, for example, from time to time he will get up to mischief, including accessing pornography on the internet with his friends.

51 I am satisfied also that [Mr S] is doing his best in waging what is a very common battle between modern parents and their teenage sons to ensure that [Peter] does not spend too much time glued to the computer. However, I accept that children reach an age where it is counterproductive to seek to prevent them engaging in activities which they enjoy.

52 I am less satisfied about [Ms C]'s ability to provide for the children's emotional needs. Although I am confident that for much

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of the time she is a loving and attentive mother, her personality and anger problem lead her to do and say things that are deeply hurtful from time to time. For example, I accept [Mr S]'s evidence that [David] was distressed in January 2004 when he said his mother had said something to him to make him think he was “mental”.

53 I am also concerned about [Ms C]'s past behaviour in going to [Peter]'s school in February 2004 and creating a scene. I am sure that the last thing a boy of [Peter]'s age wanted was to have his mother barge into the school and behave in the way she did. Similarly, I am satisfied [Peter] was embarrassed when [Ms C] went to collect him from a friend's home in October 2004. It would also have been embarrassing for the younger children at school in early 2005 when [Ms C] made a fuss whilst denying [Mr S] the contact to which he was entitled under the terms of the 2004 orders. I accept that there were also other times when [Ms C] went out of her way to make a fuss at the children's school with a view to publicly venting her anger at [Mr S].

54 I accept Mr [Mr T]'s assessment that [Ms C]'s ability to provide for the children's emotional needs is hindered because of what he called “her concrete thinking and lack of emotional flexibility for the boys” and what he called a “looming concern about how she would cope with [John] and [David] as each enters adolescence and her inability to adapt her fixated authoritarian parenting style”. I do accept that [Ms C] has moderated her behaviour significantly in the last couple of years. However, it is my assessment there is room for some more improvement.

the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

55 There are three issues I propose to discuss under this heading. The first is that all three children are boys, who are either teenagers or soon will be. I am satisfied that [Mr S]'s personality and approach to parenting is better suited to the needs of boys of this age than [Ms C]'s personality and approach to parenting. I consider that if the boys were to live with her, there would be a much greater likelihood of quite destructive conflict between her and the boys, whereas [Mr S] is better equipped to guide them through their adolescence.

56 The second issue of relevance under this heading is that the children are of mixed [race] heritage. [Mr S] cannot speak a word

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of [that language], but on the other hand, nor can the boys. Whilst [Ms C] is much better equipped to expose the boys to elements of their [racial] heritage, there is no evidence that she has ever done so to any significant extent. In any event, she will have the boys with her for long periods of time and can develop their interest in their [racial] heritage during those times should she so desire.

57 The third issue relates to [Ms C]'s behaviour in allowing [David] to sleep in the same bed as she does. It seems this happens fairly often. It is important, in considering this aspect of the case, to recognise that what may be appropriate in one cultural tradition will be considered inappropriate in another. [Ms C] said she slept in the same bedroom as her parents until she married and believes that to sleep in the same bedroom as your parents is an indication of affection. I nevertheless think there is some merit in the proposition put to [Ms C] by [Mr S]'s counsel that it would be best for [Ms C] to stop this practice, since [David] is growing up in Australia where it is generally not considered appropriate for a 10- year-old boy routinely to sleep in his mother's bed.

if the child is an Aboriginal child or a Torres Strait
Islander child:

(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii) the likely impact any proposed parenting order under this Part will have on that right;

58 Not applicable.

the attitude to the child, and to the responsibilities of
parenthood, demonstrated by each of the child’s parents

59 I am satisfied both parents have done their best within their respective capacities to fulfil their responsibilities as parents.

any family violence involving the child or a member of the
child’s family;
any family violence order that applies to the child or a
member of the child’s family, if:

(i) the order is a final order; or

(ii) the making of the order was contested by a person

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60	Although there was violence in the marriage, it was not a one-way street. [Mr S] was violent towards [Ms C] and she was also violent towards him. Regrettably, as previously noted, the children were exposed to this behaviour.

61 There is still in existence a VRO which will not expire for another few weeks. That order makes clear that it is subject to the terms of any order this Court might make in relation to the children. Unfortunately, the order has prevented [Mr S] from being involved in the younger boys' education, which is a pity, as the evidence indicates that he can be a very valuable resource and role model for the boys and other boys in their classes.

whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

62 In the event the younger boys were to remain with [Ms C], I consider it is fairly likely there will be further proceedings concerning their place of residence in the future, as it is quite possible that they would want to vote with their feet in the same way I am satisfied [Peter] already has. If they move to live with [Mr S] now, there is less likelihood of substantive future proceedings, although I do not rule out disputes in relation to the time the children spend with [Ms C].

63 In the event any of the boys decided in the future for good reason that they wanted to return to live with [Ms C], I consider it likely that [Mr S] would allow them to do so without the necessity for further Court proceedings.

any other fact or circumstance that the court thinks is
relevant

64 I should mention under this heading that there were a number of very unsatisfactory aspects of this trial. [Mr S] was represented by experienced counsel, whereas [Ms C] was unrepresented. [Mr S] is extraordinarily articulate, or what [Ms C] properly called in her closing address “a smooth talker”, whereas [Ms C] struggles with English, which is her second language. Fortunately, however, there was an Independent Children’s Lawyer and I note also that [Ms C] appears to have had assistance in preparing her affidavit and the affidavits of her witnesses.

65 In coming to my decision, I have taken account of the fact that [Mr S] had numerous advantages in the presentation of his case that

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were denied to [Ms C]. In particular, I consider that had he been exposed to an adequate cross-examination, he would not have been able to emerge as unscathed as he did, given some very unsatisfactory aspects of his own past behaviour.

Who should have parental responsibility?

66 As a consequence of the recent amendments to the Family Law Act 1975, it is necessary for me to consider first the issue of parental responsibility before determining the issue of where the children should reside. [Ms C] did not seek an order in relation to parental responsibility for major long-term issues and it follows she would be prepared to have an order for equal shared parental responsibility. [Mr S] sought an order that he have sole parental responsibility. The Independent Children's Lawyer originally did not seek any order in relation to parental responsibility for major long-term issues. She acknowledged, however, that it was probably not realistic to expect the parents to share responsibility for major issues concerning the children. The final version of her Minute of proposed orders now proposes that the father have responsibility for long-term issues.

67 The Family Law Act 1975 now contains a requirement for the Court to apply a presumption that it is in the best interests of children for parents to have equal responsibility for parental decision-making, but the presumption does not apply in circumstances where there has been violence between the parents. In this case there has been a great deal of violence between the parents and I am therefore not obliged to apply the presumption.

68 I have no doubt that it would not be in the best interests of the children for their parents to have equal shared parental responsibility. An order which would oblige them to discuss matters and, hopefully, reach agreement would simply lead to conflict and the children are likely to be exposed to that conflict.

69 I accept that there have been occasions in the past where the parents have been able to speak together at length concerning matters relating to the children, for example, in the long telephone call on the night prior to the pre-trial conference in 2006. However, their discussions in the past have tended not to lead to agreement being reached. It is also noteworthy that the parties attended counselling at Centrecare in 2006 to assist them in co- parenting the children, but after one counselling session, Centrecare determined that the level of conflict was too high for the parties to benefit from any further counselling.

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70	Although I intend to allow [Mr S] to have full parental responsibility for long-term issues concerning the children, I would expect that he would find ways to give [Ms C] the opportunity to have some input into those decisions. The final responsibility, however, would rest with him.

With whom should the children live?

71 I turn now to consider the issue of where the children should live. In this regard I have no doubt that the orders sought by the Independent Children's Lawyer are in the children's best interests. The main reasons are these:

• The orders proposed by the Independent Children's Lawyer would ensure all three boys live together. There is no realistic prospect of this occurring in [Ms C]'s home as [Peter] does not wish to live with his mother. It will be in the boys' interests to live together as they enjoy each other's company and [Mr S] is quite capable of looking after all of them.

• [Ms C] is not as well equipped as [Mr S] to meet the children's emotional needs for the reasons that I have indicated above.

• [Mr S] is more likely than [Ms C] to encourage the boys to have a good relationship with both parents.

72 As I have found that parental responsibility should not be shared equally, I am not bound by the Act to consider sharing the children's time equally between the parents. I have, nevertheless, given consideration to that option. Ultimately, I determined it would not be appropriate. Firstly, [Peter] would not be prepared to live with his mother and, therefore, an order for shared care would mean the brothers would continue to live in different homes for significant periods of time. Secondly, the relationship between the parents is such that there would likely be many logistical difficulties. Thirdly, in my view, [Mr S] is likely to provide a quieter, calmer home environment for the boys.

73 I do consider, however, that it would be desirable, at least for the younger boys, that [Ms C] spends what the Family Law Act 1975 now calls “substantial and significant time” with the boys. She is a loving mother who has much to offer the boys. So long as she conducts herself appropriately when the boys are with her, I consider it would be desirable for there to be a gap of not more than a few days between visits.

74 I stress that my view about the desirability of such regular visits is dependent on [Ms C]'s conduct when she has the boys. If

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she badgers the boys or uses the contact time to make them feel bad about living with their father, then it may unfortunately become necessary to review the contact visits and, for example, eliminate the mid-week contact.

75 I turn now to the finer detail of the Minute of orders proposed by the Independent Children's Lawyer. I am satisfied that [Peter]'s contact with his mother should be in accordance with his wishes, as recommended by [Mr T] and as suggested by the Independent Children's Lawyer. He is 14 years of age and an intelligent and sensible young man. I am satisfied [Mr S] will encourage him to have contact with his mother, but if he refuses to go there is no point forcing him. I am fairly satisfied he will go on contact regularly if [Ms C] stops badgering him.

76 I am satisfied there is no point ordering any counselling between [Peter] and his mother at this stage. He is a quiet boy who has not enjoyed or benefited from the counselling process in the past. I consider that [Ms C] needs to move on in her own life and come to grips with her problems before there could be any point in any therapeutic engagement between mother and son. It seems fairly unlikely she would be able to move on without some fairly significant therapeutic intervention. I therefore accept the Independent Children's Lawyer's proposal for her to be required to attend counselling, as she has been prepared to do in the past. The objective of the counselling would be, as [Mr T] suggests, to allow her to develop a greater degree of flexibility in her attitude towards Mr [S] and towards the parenting of her sons, as well as gaining greater insight into the effect of her current thought patterns on [Peter] in particular.

77 Mention was made during the course of the hearing of [John]'s time with his mother being dependent on his wishes. I consider the time is fast approaching where that should be considered especially if problems begin to arise, but for the time being it is not sought by the Independent Children's Lawyer or [Mr S] and I do not propose to order it yet.

78 [Mr S] proposed contact every Wednesday after school until 8.30 pm, but also said he had no objection to overnight contact on Wednesdays, as the Independent Children's Lawyer now proposes. [Mr S] said he was not one to believe that children's schooling is upset by overnight contact during the school week. In the circumstances of this case, I consider it appropriate for there to be a mid-week sleep over, but I have already warned that this will need

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to be reconsidered if [Ms C] takes the opportunity to badger the
boys whilst they are with her.

79 The school principal considered that it was “essential and fair for both parents to be able to attend special events for their children at school … For either parent not to be able to attend these events would be disturbing to the school and students involved”. Regrettably, [Mr S] decided not to attend [John]'s graduation at the end of year 7 because of understandable concerns about what would happen in the event that he did attend. I concur with the recommendation of the Independent Children's Lawyer that there be an order that [Ms C] be at liberty to attend all of the children's school events.

80 [Mr T] considered it appropriate that an order be made specifically to allow Mr [S] to be involved in [David]'s classroom, assemblies, general school activities and parent/teacher meetings. This would not only, for example, allow him to be involved in a program to boost [David]'s self-confidence, but also will assist in making it clear he cannot be in breach of the VRO by attending the school. As [David] will now primarily be living with [Mr S], I see no need for such an order since he should be able to be involved in the boys' school activities to whatever extent is acceptable to the school.

81 I otherwise consider there should be orders as proposed by the Independent Children's Lawyer. However, I do not consider [Ms C] has had sufficient time today to digest all of the proposed orders and I would therefore make those orders “until further order of the Court” so there can be some finetuning, if necessary, when the matter next comes back before me.

82 The orders proposed by the Independent Children's Lawyer provide for a transitional arrangement, during which period [Ms C]'s contact will be supervised by Reverend [H] or someone in the church community he recommends. I thank him sincerely for his willingness to undertake this task and the support that he has provided to [Ms C] throughout this trial.

83 I consider that, apart from the orders sought by the Independent Children's Lawyer, there should be a non-denigration order as proposed in paragraph 6 of [Mr S]’s Minute of orders. I consider that this denigration order should be directed to both of the parents.

84 In looking at the Minute of the Independent Children's Lawyer handed up today, paragraph 12 indicates that in the event any of

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these orders are inconsistent with the violence restraining order, to the extent of any inconsistency the Family Court orders prevail. Having considered the terms of the Violence Restraining Order, it seems to me that the orders do not in fact conflict because the Violence Restraining Order itself indicates that it is subject to any “family order” within the meaning of the Restraining Orders Act 1997 and these orders I am making today are such orders. Given the problems that have occurred in the past, I nevertheless intend to make an order to deal with this issue. Looking now at the Minute from the Independent Children's Lawyer, I do not propose to make the first order precisely as proposed by the Independent Children's Lawyer. I will make instead an order that the children live with the respondent father. I will make no order about day-to-day care, welfare and development because the Act now provides that each parent has responsibility for day-to-day care, welfare and development when the children are living in their care.

85 I will make a slight amendment to paragraph 2 to make it consistent with the new terminology and that will be that the father is to be responsible for major long-term issues concerning the children, on the understanding the father will make every effort to consult with the mother in relation to those issues.

86 There will be an order in terms of paragraph 3.

87 There will be an order in terms of paragraph 4 and as I have indicated, that order will begin with the words "until further order of the Court".

88 I will make all of the orders from paragraphs 2 to 11, but again I will make all of those orders "until further order of the Court," so the parties can take time to consider the fine detail of those orders and make any comments next time they come back to Court.

89 Instead of the order in paragraph 12, I will make these orders: this is an order to which s 68P of the Family Law Act 1975 applies and to the extent that this order may be inconsistent with the family violence order made in the case between the parties on 1 March 2005 in the Magistrates Court in Perth, bearing complaint number PE454/05, the aforesaid orders shall prevail and the family violence order is invalid to the extent of the inconsistency.

90 By way of explanation of that order, it means the father and mother are able to exercise the rights that are available to them in relation to the children under the terms of this order, in particular, the right to have the times with the children specified in the order

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and to attend at the children's school in accord and strictly with the terms of this order, but it does not permit, for example, the father to attend at the mother's residence for any other purpose and does not permit the father in any way to harass or annoy the mother.

91 There will be a further order that the Principal Registrar shall cause a sealed copy of this order to be forwarded to the Commissioner of Police, the Deputy Registrar, Magistrates Court at 30 St Georges Terrace, Perth, and the Chief Executive Officer at the Department for Community Development.

92 In dealing with the transitional orders, there will be orders as proposed in paragraphs 13 and 14 and 15. As far as the timing of the appointment before me, I will liaise with the Independent Children's Lawyer, or more correctly, my Associate will liaise with her, in relation to the timing of the next appointment before the Court to monitor the progress in relation to contact and to consider any further report that is received from [Mr T].

93 The final issue relates to the contravention application that was before the Court this morning and which was adjourned to me this afternoon. It would be my strong wish that this application not proceed. I see no useful purpose in it proceeding, but if the mother wishes it to proceed then it will proceed. There will be an order that the Form 18 contravention application stand adjourned generally with liberty to the mother to seek a relisting of the application on making written request to the Court.

94 These orders will be prepared and made available to the parties on a prompt basis. I hope they will be available within the next couple of days.

RECORDED NOT TRANSCRIBED

95 I will incorporate into paragraph 4, between subparagraphs (l) and (m) the following, "For other special events on three occasions each year”. Next, “for special occasions such as weddings and funerals", so the mother can understand that not only does she have all of the other times with the children during the year, she can require the children to come over to her place for three other special events during the year and in the event that there are special occasions such as weddings and funerals, she is also entitled to ask to have the children on those occasions.

96 As I said, I overlooked formally making the order about paragraph 6 and there will be an order that the father and the mother both be restrained by injunction:

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(a)	from denigrating each other in the presence of or within the earshot of the children;

(b)	from discussing family law issues with the children;
(c)	from denigrating the other to any member of the school community.

I certify that the preceding [96] paragraphs are a true copy of the reasons

for

judgment delivered by this Honourable Court

Associate