DALE and POTTER

[2016] FCWA 27

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: BUNBURY

CITATION: DALE and POTTER [2016] FCWA 27

CORAM: THACKRAY CJ

HEARD: 18 FEBRUARY 2016

DELIVERED : 18 FEBRUARY 2016

FILE NO/S: PTW 3510 of 2014

BETWEEN: MR DALE

Applicant

AND

MS POTTER
Respondent

Catchwords:

CHILDREN - Parental responsibility - With whom a child lives - The father can offer a more stable home - Orders for the father to have sole parental responsibility, and for the children to live with the father and spend regular time with the mother

Legislation:

Family Law Act 1975 (Cth), s 60CC

Category: Not Reportable

Representation:

Counsel:

Applicant: Self Represented Litigant

Respondent: Self Represented Litigant

Solicitors:

Applicant: Self Represented Litigant

Respondent: Self Represented Litigant

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

Nil

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

[Prior to the Chief Judge giving these ex tempore reasons, he informed the parties that he intended to make an order changing the place of residence of the children. The mother then left the court. The maternal grandmother, who had given evidence and remained to support the mother, was thanked for her courtesy in remaining in the court, but was advised she could also leave if she wished to do so before the reasons for judgment were delivered. She remained initially, but left partway through the delivery of the reasons.]

1I am required to determine a dispute between [Mr Dale] (“the father”) and [Ms Potter] (“the mother”) in relation to future living arrangements for the two children of their marriage: [Child A], born [in] 2009; and [Child B], born [in] 2012. Child A will therefore turn 7 this year and Child B will turn 4.

2Both of the parties have applied to the court for the children to live with them, and each seek an order for sole parental responsibility. At the commencement of the proceedings today, each parent was agreeable to the other parent having time with the children on alternate weekends and during school holidays. Those proposals have been refined following the conclusion of the evidence.

3Both parties were legally represented at an earlier stage of the proceedings. The father was privately represented, and the mother was in receipt of legal aid. The father ceased to have legal representation, I gather, because of financial considerations. The mother ceased to be represented because, unfortunately, legal aid was withdrawn. Given the considerable gravity of the matters which I have been asked to determine, it is highly unfortunate, to say the least, that neither of these parties was represented. As a consequence, the trial has proceeded in a way which I regard as being quite unsatisfactory, but outside of my control.

4The matter, certainly from the mother’s perspective, was prepared poorly. Although the father has done his best and is clearly much better organised than the mother, there were also elements of the presentation of his case that were not ideal. Any examination of the transcript of what has happened in this courtroom today will indicate that the matter did not proceed in the way that it ought to have proceeded, or would have proceeded if the parties had the benefit of legal representation. The court can only do what it can with the documentation and information provided.

5The mother arrived at the court without copies of her own documents, let alone the father’s documents. She had also recently filed an affidavit in the court, or sought to file it, but failed to send a copy to the father. As a result, the proceedings had to be stood down for the best part of an hour to allow the father to read the mother’s late-filed material. Also, the father’s significant affidavit of September 2015 was not on the court file, and I had to take time to examine that.

6The other matters listed for hearing today were three contravention applications that the father filed during the course of the proceedings, alleging 40 different breaches of earlier court orders relating to drug testing, and face-to-face and telephone time with the two children. At the commencement of the hearing, the father sensibly elected to withdraw those applications, not because he did not wish to pursue them, but because he recognised from what I had said that it was not going to be practicable for the court to hear 40 contravention applications and also determine a residence dispute in the one day that for some reason had been allocated to this matter.

Background

7The father was born on [in] 1987 and will therefore be 29 this year. He is employed [as a] manager in [Country Town A]. The mother was born [in] 1984 and will therefore be 32 this year. She is not in paid employment and has not been since the separation, although I gather she may have worked as [an administrative assistant] at some point.

8The mother and father commenced a relationship in May 2007. At this time, the mother already had a child, [Child C], who was born [in] 2003. Child C’s father apparently lives [overseas] and does not play a part in her life. She was accepted into the relationship that was formed between the mother and the father, in some ways as if she was the father’s own child, and I gather she began to regard him as such, which would not be surprising for a child of that young age.

9The children Child A and Child B, as I have said, came along subsequently. Child A was born in 2009, a couple of years into the relationship, but Child B was not born until [mid] 2012, by which time the parties had already separated, having parted in February 2012.

10Early in the relationship between the parties, the father purchased a home in Country Town A and the parties lived in that property throughout their relationship. The father continues to live there today, now sharing the home with his new wife, [S], who he married very recently but with whom he has been in a relationship for some time. S has three children: [C,] who is aged about 7; [B], aged about 6; and [R], aged about 3. C and B attend the [Primary School A], which is about 500 metres from their home. Child C previously attended that school and I have heard this afternoon that the mother herself attended there. Both of these families are very Country Town A based, with all of them apparently having been brought up there, including the father’s new wife.

11During the course of the relationship, the father was engaged in fly-in fly-out work. It was a very heavy shift roster and, as I understand it, he was away for four or five weeks and home only for one. He was able to earn a very good income to support the family during that period, but the mother was left alone to care for the children for the great majority of the time.

12These kinds of working arrangements put many stresses on relationships, and a great deal of stress on the woman who is left with a very young family and with a father who quite commonly, understandably, expects some recreation upon his return from such an onerous schedule. This family seems to have been no exception. I have heard evidence today from the maternal grandmother of the children about her having spoken with the father about the stress on the relationship and the necessity for his schedule to come to an end if the relationship was to be saved.

13When the parties separated, the mother was the full-time carer of the children, Child B was not yet born, and thereafter, the father did not contest the fact that the children should remain with the mother and have regular contact with him, which became feasible because the father had given up his employment and resumed work in Country Town A.

14At some point after the separation, the mother formed a relationship or at least began to live with a man named [Mr M], who lived in [Country Town B]. The mother’s evidence today would suggest that she was a tenant in his home and that their relationship became romantic and/or physical at times, but the impression that I have is they were probably living in some kind of relationship, even if not declared.

15I know little about Mr M other than that he has a minor record for one drink driving offence and two offences of refusing to leave licensed premises when requested to do so by an appropriate officer. The mother’s evidence might suggest that Mr M had a drinking problem from time to time. In her oral evidence today, she also disclosed that she continues to have some kind of association with Mr M, although the detail of that is unclear.

16A whole range of events have occurred since the separation between the mother and the father, who obviously have a very poor relationship now. Originally, they were able to manage some kind of visiting arrangement and the father was able to keep in touch with the children, but conflict emerged along the way and, in particular, it seems that problems may have commenced when the father cemented his relationship with S. I gained the impression that the mother took a fairly dim view of this, and, understandably enough, was concerned about what she perceived as occasions when S was being responsible for the children when the father ought to have been. The details of the history, to be frank, are not terribly significant. I will pass over them, other than to say that on the father’s evidence, which I am inclined to accept, he did not see Child C for about seven months and did not see Child A or Child B for about four months.

17As I understand the evidence, the father attempted to arrange mediation to try to resolve matters with the mother, but she did not participate, and the father then commenced these proceedings on 3 October 2014. The matter has been to court on a number of occasions since then. Originally, the dispute also involved financial matters, but the financial issues were ultimately resolved by consent.

18On 11 February 2015, after a hearing on the papers before a magistrate here in Bunbury, various orders were made on the basis that pending the disposal of the proceedings, it was clearly intended the children would remain with the mother, but orders were made for the father to have regular contact. Paragraph 9 of the orders provided that the father was to have the children on each alternate Thursday, from the morning for Child B and from the conclusion of school for Child A and Child C; each alternate weekend from after school on Friday to the commencement of school on Monday; and for one week during the mid-term school holidays. Provision was also made for regular time on the birthdays of the children and the father, and for regular telephone contact.

19The father’s contravention applications indicate that not all of the orders were complied with. There appears to have been fairly significance compliance, and certainly in recent times, with the arrangements in relation to weekends and school holidays, which is not to say that there were not hiccups. The telephone contact did not happen as originally planned and was scaled back to a couple of nights a week, and even then, it did not always happen. What never happened, it seems, was the alternate Thursday time. The mother took the position that the time should be spent with the father, and that because the father was working, the children would be cared for by S or somebody else. The mother was not strictly entitled to take that position, as it was for the father to arrange his time with the children as he saw fit, but it is not an entirely unreasonable position, putting aside the fact that it has breached the court order.

20However, over the fairly lengthy period of separation, the father has, against some obstacles from time to time, been able to keep up a regular visiting regime and cement his relationship with the children. During the period when the mother was in Country Town B, the father had to undertake all of the travel arrangements, which he appears to have done without complaint.

21At some point during this process, the relationships between the father and Child C, and between Child C and S broke down completely. It is always a difficult matter to effectively try to join up two families. In this case, there was the added complication that Child C was not the biological child of the father, and that she was a fair bit older than the other children in the family constellation. It was decided by the father and S that it was simply not in the interests of anybody for them to attempt to maintain the relationship with Child C, and all contact with her was terminated. Prior to that, contact had effectively been terminated by Child C anyway, because she was also unhappy with the arrangements.

22It is not at all surprising that a girl of Child C’s age would find it very difficult, if not impossible, to cope with the enormous change that has come across her life. One can only feel sorry for Child C that she has now lost the person that she regarded as being her father. With all due respect to the father and his wife, I am not entirely satisfied that the matter was handled as sensitively and compassionately as it might have been. I suspect that it is now too late for the relationship to be repaired, but if there is any prospect of endeavouring to remake some connection with Child C, then I would certainly encourage those involved to do so. In making those comments, I reiterate how difficult the circumstances must have been for all concerned.

23During the pendency of the proceedings, the mother has lived a somewhat erratic lifestyle. She left Country Town A after the separation and took up residence with Mr M. If I understand the evidence correctly, she subsequently took up residence in the same street as Mr M. She then moved to another house in Country Town B, then moved back to Country Town A in April 2015, and in the last few days has moved residence again in Country Town A.

24At one point when she was living with Mr M, on more than one occasion, the mother found herself homeless. She tried to paint the picture that this was because Mr M’s children were coming to visit, there was not enough room for everybody, and he politely asked her to find somewhere else to live. The father’s take on this is that there was a disruption in the relationship with Mr M, he threw her and the children out, and she then called on the father to provide accommodation for her and the children. I gain the impression it is more likely that the mother’s homelessness arose as a result of disputation between her and Mr M, leading to, for example, on one occasion, the mother imploring the father to let her come back to live in the property when she was sitting in a car park at night with the children. The father, to his credit, agreed to the mother returning to the home with the children on some of those occasions, because he recognised that they would otherwise be homeless, but clearly that situation could not continue indefinitely.

25As a result of the changes of accommodation, the children have not only been disrupted by moving around, but there have also been changes of schooling arrangements. In her proposal, the mother intends for there to be another change of residence and another change of schools. She hopes she will get a transfer of her Housing Authority accommodation so that she can live in [Country Town C]. Her reasons for wanting to leave Country Town A are manyfold, one of which is that Child C no longer lives with her.

26When the mother moved from Country Town B to Country Town A Child C went to live with her grandmother and her grandmother’s husband in [Country Town D], where she has remained ever since. Child C says that she cannot cope with seeing her brothers go off to visit the man she regarded as her father, and feels that if her mother was living in Country Town C, it would be easier to cope with that. It is not for me to say whether Child C’s views are logical or not, but if the children were living with the mother, the brothers would continue going to see the father while Child C remained at home with the mother.

27Another reason the mother wants to go to Country Town C is to make a fresh start. She feels that she does not have many friends in Country Town A, notwithstanding she has lived there for almost all of her life, and she also feels that everyone in Country Town A takes drugs. She does not want to be associated with those people, notwithstanding that she appears to have voluntarily chosen to associate with people who take drugs, including her friend [Ms C], who appears to have a number of serious issues.

28I should also mention why the mother moved from her previous home in Country Town A, where she had lived only since April 2015. Very concerningly, the mother gave evidence about the possibility that Child B was sexually molested by a man who lived diagonally behind her previous house in Country Town A. The mother, during the course of cross-examining the father, gave an extremely erratic description of what was said to have happened prior to the allegation of sexual abuse arising. At some points, one might have been forgiven for thinking that she had lost touch with reality in the way that she was describing the events.

29It seems that the mother suspected the man in question of some kind of inappropriate behaviour. She claims that sometime later, Child B made a disclosure to her that the man had touched his “willy” and put his fingers up his bottom. As a result of this, appropriately if such a disclosure was made, the mother contacted the police and/or DCP. They carried out an investigation but concluded that nothing should be done. Nevertheless, the mother confronted the man in question. He reacted in the way one might expect when faced with such an allegation, and there was a falling out. Also involved in this story was a lady who lives in the immediate neighbourhood, who has a social anxiety problem and whose garden is so overgrown that the mother referred to it as a jungle. I am not altogether sure how she fits into the story other than that she was there at the time.

Credibility and impressions of the parties

30The mother’s story about this and other parts of her evidence were in conflict, not just with the father’s story, but with her own evidence. It has to be said that I can place very little weight on the mother’s credibility. I was more inclined to accept the evidence of the father, which is not to say that I necessarily accepted all of his evidence, but by and large, he gave evidence in a more than satisfactory fashion.

31The mother was extremely tired today, but she presented in a quite unsatisfactory light. Her presentation, the evidence and her criminal record suggest that she is a person of somewhat volatile disposition. While one can sympathise with the mother for the difficulty in which she found herself following separation, where she had no real income earning capacity and a very young family to look after, her arrangements over this time have been very irregular and match my impression of her as a person who has considerable difficulty in managing the basics of everyday life.

32Some of the evidence tended to support the father’s proposition that the quality of the care the mother has been providing to the children has been less than satisfactory, including what I accept is the likelihood that she spends a fair deal of time in bed. There is also concern in relation to her taking drugs, with her having returned a number of positive tests and declining to attend other tests, although I accept that the cost of such testing can be prohibitive for a person on a low income. Altogether, the mother presented as erratic and highly emotional, which is not entirely surprising given the stressful circumstance of appearing in court today.

33The mother came to court with only one witness, not realising that the other people she wanted to rely upon would need to swear affidavits and/or be here. However, her other witnesses were, largely, less than useful character referees.

34The maternal grandmother presented in a very different fashion to her daughter. She appeared to be a very respectable, sensible, calm woman, who readily made many admissions in her evidence, including her about her affection for the father and her offer to support him with the children. She did not accept that she had gone so far as to volunteer to pay the father’s legal fees, and there is no evidence of that, save for the father’s question to her suggesting that she had. One can readily sympathise with a woman in her position, who is trying to keep her daughter together and feels sorry for her daughter, yet recognises some of the shortcomings in her daughter’s parenting. In my view, the maternal grandmother would be a very steadying influence in the mother’s life, a good influence for the children, and someone who the father should ensure the children have a good relationship with. It seems that he and the former mother-in-law have enjoyed a positive relationship in the past, and there is no particular reason, except the outcome of today’s proceedings I suppose, why that should not continue.

35It is for the mother and the grandmother to work out what is going to happen to Child C, but I can certainly see some advantages for Child C in continuing to have the more steady influence of her grandmother in caring for her, and continuing with her education in Country Town D.

36The father is a logical-thinking person, and his history shows that he is a far more stable person than the mother. He originally had an apprenticeship with the company that currently employs him. He was there for some time and was obviously held in high regard. He then went and held down steady, well-paid employment in [another] industry. When he came back to Country Town A, he was placed in a senior position in the company where he now works, and he earns a very good income of $80,000 a year with some flexibility.

37The father’s accommodation arrangements are also stable. He has lived in the same home since 2008. He has formed a relationship with a respectable local woman, who has also held down steady employment in Country Town A. S has worked at [a local business] since 2002, save for taking maternity leave, and her employer speaks of her very highly. S also presented as a calm, rational, logical person, and I consider that the combination of the two of them will result in the children being given a very stable, calm living environment.

The parties’ proposals

38The mother proposes to leave Country Town A, probably at the end of this year, to live in a town where she has never lived, in a community where she knows nobody, where she would not have any employment, and in circumstances where she has neither a car nor a driver’s licence. Although she might successfully resolve at least the licence issue, I am not sure how a person in her income position will be able to get a car. All that can be said is that her arrangements are completely up in the air.

39On the other hand, the father’s proposed arrangements are very clear, predictable and stable. The only deficiency, if it is seen as such, is that he lives in a fairly modest dwelling given the number of children that need to be accommodated. It has three bedrooms, and the arrangements sound a little cramped, but adequate. At present, S’s daughter uses one small room and the four boys share a room. Each boy has his own bed in a double-bunk arrangement. I was impressed that father and his wife used their tax refund to renovate both bedrooms, and I was particularly impressed by the effort they invested in ensuring that each boy has a little personal space. They have also made sure that the facilities provided for the two lots of boys are identical, so there is no suggestion that the boys who live in the house on a regular basis are given preference over the boys who only visit.

40The father and his wife gave evidence of a desire to build another bedroom on the house. This has not got beyond the stage of being thought about, which is understandable given they did not know what the outcome of the proceedings would be. The mother was very sceptical about the likelihood of this occurring, saying that this had been talked about when she was living with the father. He did not get a chance to comment on that because he had already given his evidence. Given the cost involved, that the family has a number of commitments in looking after five children and that they have a level of debt, I am not proceeding on an assumption that the bedroom is going to be built anytime soon, if at all. If it is not, then as the children get older, it is going to be very cramped.

41S readily acknowledged that there was disputation between the children. The father, initially, was not quite so ready to acknowledge that, but he ultimately did so, because, as he says, it is inevitable with children of that age that there are going to be conflicts. I do not envy the father and his wife in their efforts to bring children of that age together and keep them happy, but I think they are as well-equipped as any other parents to deal with what are going to be some pretty serious challenges.

42Another important part of the proposals is in relation to the children’s education. S’s oldest children are attending Primary School A nearby. The father intends for his sons to be moved to that school from the school they are currently attending on the other side of town. Whilst I am troubled about the extent to which the children have already changed schools, this move is clearly inevitable. It is the only practicable way for the father to arrange affairs within his family, and the children are of similar ages. All things considered, the evidence suggested that they get on pretty well, and I have no difficulty with that proposed move. Fortunately this decision comes quite early in the school year, and I anticipate that arrangements will be made for the children to change schools quite rapidly, but I will leave it to the father and his wife to determine what is appropriate after discussion with the respective schools.

43The children’s secondary education is a way off, but I was impressed by the obvious thought that the father and his wife put into their proposal. I am not convinced that the mother thinks as far ahead in relation to these sorts of issues. The father and S have in mind an arrangement where, if they can afford it, the children would go to a private school not far from Country Town A, which was attended by S’s sister. They demonstrated thought and foresight in their description of why they would like the children to go to that school. I will not base my decision on any assumption the children are going to attend that school, and there are other alternatives available, but I am convinced that the father and S will make good and steady arrangements for the children’s education.

The law

44These proceedings are governed by the Family Law Act 1975 (Cth) (“the Act”), which makes the children’s best interests the paramount consideration.

45In deciding what orders to make, I must be guided by the objects of the Act and the principles underlying them, which indicate that children’s best interests are met by:

(a)ensuring they have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with their best interests;

(b)protecting them from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;

(c)ensuring they 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.

46In determining the orders most likely to be in the children’s best interests, the Act mandates an approach to be followed if there is an order for equal shared parental responsibility. In coming to my decision on that issue, I am required to apply a presumption that it is in the boys’ best interests for their parents to share parental responsibility equally. The presumption does not apply if there are reasonable grounds to believe that either parent, or a person who lives with them, has engaged in child abuse or family violence (as defined in the Act). Furthermore, this presumption may be rebutted by evidence that it would not be in the boys’ best interests for the parents to have equal shared parental responsibility.

47The allocation of parental responsibility does not govern the time children will spend with each parent. However, if an order is made for equal shared parental responsibility, then the Act requires me to consider whether spending equal time or, failing that, “substantial and significant time”, with each parent would be in the children’s best interests. If either alternative is in their best interests, then I must consider making such an order, provided I have also found the arrangement to be “reasonably practicable”.

48In determining what is in the children’s best interests, I must also consider the matters in s 60CC of the Act, which are divided into two “primary considerations” and a large number of “additional considerations”. The law is now well settled that the primary considerations do not necessarily outweigh any combination of the additional considerations, but if there is a conflict between the primary considerations, then greater weight must be given to the one dealing with violence and abuse.

Primary considerations

(a)the benefit to the child of having a meaningful relationship with both of the child’s parents;

49I consider that there is great benefit to these children in having a meaningful relationship with both of their parents. I have already indicated what I think the father can offer, and the mother has been the children’s primary carer. It would be reasonable to believe that, notwithstanding some difficulties in the mother’s parenting, the children’s primary relationship and bond would be with their mother at present. They have an emotional attachment to her which will make the coming months very difficult, and I consider it utterly imperative that they continue to have a meaningful relationship with her.

50I pause to say that I have very serious concerns about the mother’s mental health over the next little while. She has previously placed a most concerning entry on Facebook suggesting that she might do herself serious harm, if not kill herself. She assured me at one point in her evidence today that she was merely venting and would not do it. However, I think it is a clear indication of why it is important that the children spend more time with the father than with the mother. She knew or ought to have known that her vulnerable eldest child would read her Facebook comment, as indeed she did. The child then had to contact the mother to provide her with comfort and reassurance, when parenting is all about things being done the other way.

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

51I am quite satisfied that in the home of the father, the children will be protected from all forms of harm. In the mother’s home, I regret to say that I consider that her capacity as a parent is such that I believe they would be at risk of psychological harm from being exposed to things that I simply cannot predict. I am very troubled about what happened in relation to the man behind the mother’s previous residence, and I am concerned about what sort of behaviour the children might be exposed to. From the evidence, the mother seems to be able to get herself into some scrapes from time to time, and I am not convinced the children would be protected from that.

52I should also mention the content of the conference memorandum prepared by the Family Consultant on 12 January 2015. The document speaks for itself, but it notes, as the mother partly confirmed today, that in the precincts of this court, she was talking loudly on the telephone saying, “I had my tits out and lost my underwear”. If that is how the mother behaves in an institution such as this, it gives pause for thought about how she behaves in less formal settings, such as her home or out and about in Country Town A.

Additional considerations

(a)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;

53The children are too young for their views to be of any significance. The only evidence of their views is what the mother says the children said to her, particularly Child A when she spoke to him. I place no weight on those views at all other than to say that I expect that Child A potentially could be quite upset about leaving the mother’s home, notwithstanding the fact that I think he has a very good relationship with his father. I am concerned about what might be said to him in the next 24 hours.

(b)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);

54The children have a very good relationship with the father and with other people significant to him. The children have a very good relationship with their maternal grandmother and, in my view, they have a good relationship with the mother, albeit I think that there are some tensions in the relationship because of the mother’s behaviour. The children will not, it seems, have any relationship with father’s parents. There has been a falling out amongst that part of the family, with the father saying that his father and sister have developed some religious belief that has caused friction within the family. That may or may not be resolved in time.

(c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

(i)to participate in making decisions about major long‑term issues in relation to the child; and

(ii)to spend time with the child; and

(iii)to communicate with the child;

55The parents have each, to the extent they have been able, participated in making decisions about the children, spent time with them and communicated with them.

(ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;

56The father has properly fulfilled his obligation to maintain the children because I am satisfied that he has met his child support obligations. He pays or has paid quite a high level of child support, which is entirely appropriate given his high level of income and the high cost of maintaining children. The mother has otherwise had to maintain the children with the social security benefits she receives.

(d)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;

57This matter is very significant. I have already indicated that there is potential for some quite serious emotional upset for two little boys, who have been used to being looked after by their mother. While I accept that is a possible consequence, they have a very good relationship with their father, and I think with their stepmother. The father and S have the capacity to ease the children into the new arrangement.

58However, it is because of my concern about the upset on the children of overturning a longstanding arrangement that I consider it is imperative, for the time being at least, that the children have regular contact with the mother, so they will not be separated from her for more than a few days at a time. In making my decision about a form of contact that is perhaps a little more than I might normally consider to be appropriate, I also have in mind the importance to the children of their mother maintaining as good a state of mental health as is possible. Were she to be separated from them for too long, it may have a debilitating effect on her. Whilst it is unfortunate that the court has to be influenced by the mother’s fragile mental health, it cannot be ignored and must be taken into account in deciding what would be a suitable visiting regime. That said, although it was not the father’s preferred position, he said to me after I indicated what the result would be that he would not be opposed to the form of visiting arrangement I have in mind.

(e)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;

59There is no difficulty and expense associated with the contact arrangements at present, as both families live in Country Town A. If the mother moves to another town, there will be some greater difficulty, but if she chooses to do so, then she would need to make arrangements to support the visiting regime, and the regime may not be workable in the midweek times.

(f)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;

60I have already indicated my confidence in the ability of the father and his wife to deal with all of these things, and I have indicated my lack of confidence in the mother.

(g)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;

61This matter is significant. The boys are little, so this is a drastic step for the court to take and I have not taken it lightly.

(h)if the child is an Aboriginal child or a Torres Strait Islander child:…

62I have not been informed that the children have any indigenous heritage.

(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

63The father has demonstrated a very responsible attitude to the responsibilities of parenthood. The mother less so, because of the way in which she has behaved.

(j)any family violence involving the child or a member of the child’s family;

64Late in the piece, an allegation arose through the evidence of the grandmother about the father having once been violent towards the mother, leading to some disruption in his relationship with members of the mother’s family. I indicated that this was the first that I had heard about it. I do not believe it appears in the mother’s affidavits, so I called for a copy of the mother’s Case Information Affidavit filed on 4 March 2015. In that document, the mother claimed that in 2010, the father punched her numerous times in the buttocks and wrestled with her causing her a nose bleed. She called the police, who issued a police order, but did not press for criminal charges.

65That allegation has not properly been the subject of evidence in this hearing. The father had no opportunity to respond to it, and I take into account the obvious capacity of the mother to exaggerate and on occasions lie. I also note that in the Case Information Affidavit, the mother describes the problems in the relationship as being episodes of “shouting abuse”, so I do not consider that factor to be of significance in the proceedings.

66The mother’s behaviour has been erratic, and she has engaged in violence as defined in the Act. Although she originally tried to say it was the father who beat up his own car, the evidence made it perfectly clear that she was the guilty party and apparently found guilty.

(k)if a family violence order applies, or has applied, to the child or a member of the child’s family…

67There were some family violence orders in the past, but none are in place any longer, and it is therefore not something I need to consider.

(l)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;

68It would clearly be preferable to make the order least likely to lead to the institution of future proceedings, but this cannot be ensured. There may need to be future proceedings in relation to variation of the orders. The schedule that I am going to put in place may or may not be appropriate in the longer term. It may be that the holiday arrangements should change. It may be that one of the arrangements midweek should change, depending on how things pan out.

(m)any other fact or circumstance that the court thinks is relevant.

69I think I have adequately covered everything else.

Discussion

70I am firstly required to determine the issue of parental responsibility, because the whole structure of the Act revolves around that. Each party sought sole parental responsibility, which in itself indicates that neither of them considers that equal shared parental responsibility would be in the best interests of the children. Although I am obliged to apply a presumption that equal shared parental responsibility would be in the children’s best interests, the communication skills of the parties, and the distrust and hostility between them, are such that I would be setting them up for failure if I made such an order. There would be fights and no agreements, so I will order that the father have sole parental responsibility for the children.

71The next question is where the children should live. It is obvious from everything I have said that I consider it is in the best interests of the children to have the more stable lifestyle that they will achieve in the home of the father. For all of the reasons I have given, there will be an order that the children live with the father.

72As for the time to be spent with the mother, the orders I make will involve an alternate weekend timetable with two visits between each alternate weekend. The basic structure of the visiting schedule will be for the mother to collect the children from school the Friday after next, and return them to school on the following Monday; then each Wednesday, to collect the youngest child from kindergarten at 11.25 am and collect Child A from school at 3.00 pm, and return the children to the father at the Coles car park in Country Town A at 5.30 pm.

73As for school holidays, the mother will have the first half of all midyear school holidays. During the Christmas school holidays, the mother will have the children for a total three weeks, to be taken in periods of one week and two weeks. I make that order for the reason the father advanced, namely to give an opportunity for each parent to take the children away on a longer holiday.

74As for Christmas and Boxing Day, the schedule that I propose is fair and in the children’s best interests, and it slots in with the schedule that the father’s wife has for her children and their father. This year, the children will be with the mother from 11.00 am on Christmas Eve to 11.00 am on Christmas Day, then in the following year, they will be with the mother from 11.00 am on Christmas Day to 11.00 am on Boxing Day, and it will alternate thereafter.

75As for Easter, to allow the parties to have an opportunity to go away with the children, I propose that the father have all of Easter one year and the mother all of Easter the next year. The mother had the children last Easter, and she will have Christmas Eve and Christmas morning this year, so Easter this year should be spent with the father.

76I am going to make an order restraining both parties from consuming any drugs during or 48 hours prior to them spending time with the children. In doing so, I observe that it is the law of this land that people should not take illegal drugs in any event. I heard at the beginning of the day the father’s proposal that the mother’s time be conditional upon her being tested for drugs. This has obviously been a bone of contention. The current order seems not to have prevented the mother from taking drugs. No particular evidence has been given of any serious matters arising out of the mother taking drugs and caring for the children. In the interests of avoiding further proceedings, I do not propose to make an order for any form of drug testing, but if any evidence emerges of the mother taking drugs and behaving in a way during visits that indicates she is under the influence of drugs, I will readily consider an application for much stricter conditions to be imposed, and if necessary, I will significantly pare back the amount of time that the mother spends with the children.

77Most of the other orders that are sought are of what I would regard as a non-controversial nature. The detail of those orders will be set out in the formal orders of the court that will issue in due course.

Orders

1.The Applicant father, [MR DALE], have leave to withdraw his three order contravention applications.

2.The father have sole parental responsibility for the children. [CHILD A], born [in] 2009, and [CHILD B], born [in] 2012.

3.With effect from the conclusion of school on 19 February 2016, the children live with the father.

4.The said children spend time with the Respondent mother, [MS POTTER], as follows:

(a)on each Wednesday commencing 24 February 2016, concluding at 5.30pm and commencing at 11.25am (at the end of kindergarten) for [Child B] and from the conclusion of school or 3.00pm for [Child A];

(b)each alternate weekend from 3.00pm or the conclusion of school Friday, to 8.45am or the commencement of school Monday each alternate weekend (or Tuesday in the event of a Monday Public Holiday), commencing 26 February 2016;

(c)for 2 hours on each of the children’s birthdays, and the mother’s birthday, if a school day, and otherwise for 5 hours in the event the children would not otherwise have spent time with her on the day;

(d)the Mother’s Day weekend from after school Friday until prior to school on the Monday;

(e)for the first half of the mid-term school holidays commencing from the conclusion of school until 5.30 pm on the eighth day thereafter; and

(f)for three weeks during the Christmas school holidays to be taken in blocks of 1 week and 2 weeks.

5.The children spend time with the father for 2 hours on each of their birthdays, and the father’s birthday, if a school day and otherwise for 5 hours in the event the children would not otherwise have spent time with him on the day.

6.The mother’s time with the children be suspended on the Father’s Day weekend from after school Friday until the commencement of school, Monday.

7.Christmas:

(a)commencing 2016 and each alternate year thereafter, the mother spend time with the children from 11.00 am on Christmas Eve until 11.00 am on Christmas Day; and

(b)commencing 2016 and each alternate year thereafter, the father spend time with the children from 11.00am on Christmas Day until 11.00am on Boxing Day

8.Easter:

(a)the father spend time with the children for all of Easter 2016 and each alternate Easter thereafter;

(b)the mother spend time with the children for all of Easter 2017 and each alternate Easter thereafter.

9.Handovers at the end/start of school/kindergarten will occur at school/kindergarten and all other handovers will occur at the Coles carpark in [Country Town A] or such other place as the parties may agree in writing from time to time.

10.The mother advise the father by text message by no later than 5.00pm on the day before in the event she will not be spending time with the children the following day.

11.The mother and father shall have telephone contact with the children (when the children are not in their care) every Monday and Thursday evening, to commence between 6.15 pm and 6.30 pm.

12.Both parties be restrained by injunction and an injunction is hereby granted restraining them from:

(a)consuming alcohol to excess or using illicit substances 48 hours prior to or during any time in which the children are in their care;

(b)denigrating the other party to or in the presence or hearing of the children or allowing any third party to do so; and

(c)discussing the Court proceedings with or in the presence or hearing of the children or disclosing to the said children any of the Court documentation or allowing any third party to do so.

13.Both parties be restrained and an injunction is hereby granted restraining them from allowing any third party to post photographs of the children on social media.

14.There be leave to the parties to provide a copy of this order to the children’s schools/kindergarten/daycare.

15.Both parents be at liberty to attend all such school activities as they would normally be invited to attend by the school including parent/teacher meetings, school sporting activities and school concerts.

16.Each party be authorised to obtain from the children’s school any copies of school reports, notices, newsletters and other publications with which a parent is normally provided.

17.Both parents use their best endeavours to ensure that the children attend and remain at school as and when required by the school’s timetable unless the child/children is/are ill, injured or as a result of holiday time formally agreed between the parties.

18.The parents ensure that all clothes, educational items, extracurricular activities items and any other items sent with the children at the commencement of any period of residence with the other parent be returned at the conclusion of his/her time with the children.

19.In the event there is a medical emergency concerning the child/children, when in the care of either party, the party with the care of the child/children shall as soon as practicable inform the other party.

20.Both parties authorise any Medical Practitioner, or Health Professional attended by the children, to contact the other or to disclose information to the other party regarding the children’s medical care.

21.That in the event one party wishes to obtain passports for the children then the other party shall comply with any requests for the signing of passport application forms.

22.That in the event of the children's passports requiring renewal, both parents shall forthwith sign all necessary applications and documents required for the renewal of such passports and share equally the costs of renewing the said passports.

23.That the children's Australia Passports shall be held in safe custody by the Family Court of Western Australia.

24.That the children’s Australian Passports shall not be released without both parent’s consent or pursuant to an Order of the Family Court. The parent’s consent shall not be unreasonably withheld.

25.In the event that either parent (the travelling party) wishes to travel overseas:

(a)the travelling party shall give the other parent (the non travelling party) at least five weeks’ notice (the notice):

(b)the notice shall be in writing and include details of:

(i)the travel itinerary including destinations and accommodation;

(ii)the proposed dates of travel and flight numbers;

(iii)contact addresses and telephone numbers for the travelling party and the children whilst overseas; and

(iv)if the children’s travel will require additional time with that parent the proposal for makeup time with the children.

(c)The travelling parent shall give notice to the non travelling parent by registered mail;

(d)Within seven days of receipt of the notice the non travelling party shall respond in writing indication whether they consent to the proposed travel (the response) and the response shall be sent to the travelling party by registered mail;

(e)If the non travelling party does not consent to the proposed travel, the non travelling party shall state in their response to the travelling party the reasons for their refusal to consent to the same.

(f)In the event the non travelling party fails to provide the travelling party with the response within seven days of the receipt of the notice, the proposed travel plans are taken to be agreed by the non traveling party;

(g)If the non travelling party consents to the proposed travel plans, both parent shall give written authority to the Family Court of Western Australia to remove the children’s passports from safe custody not more than two weeks prior to the scheduled departure date.

(h)If the non travelling party fails to provide the travelling party with their response pursuant to (f) herein the travelling party is authorised under these Orders to collect the said children’s passports from the Family Court of Western Australia without the consent of the non travelling party not more than two weeks prior to the scheduled departure date;

(i)Not later than seven days after the children’s return to Western Australia the travelling party shall return the children’s passports to the Family Court of Western Australia to be held in safe custody.

26.The parties each keep the other informed of their current home, business and mobile telephone numbers, home addresses and any email address upon which they are willing to be contacted.

27.All applications and responses before the Court otherwise be dismissed.

I certify that the preceding [77] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate
18 February 2016