DAVIS and SCOTT

[2020] FCWA 187

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: DAVIS and SCOTT [2020] FCWA 187

CORAM: SUTHERLAND CJ

HEARD: 1 OCTOBER 2020

DELIVERED : 20 OCTOBER 2020

FILE NO/S: PTW 5910 of 2020

BETWEEN: MS DAVIS

Applicant

AND

MR SCOTT

Respondent

Catchwords:

CHILDREN - Interim - Whether mother and child should be permitted to continue to reside in Perth or be required to return to State A - Best interests of child - Case turns on its own facts

Legislation:

Family Court Act 1997 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr Dorney
Respondent	:	Ms De Maio

Solicitors:

Applicant	:	Holden Barlow Family Lawyers
Respondent	:	Law Firm A

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

Nil

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Davis and Scott has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).

INTRODUCTION

1[Ms Davis] (“the mother”) and [Mr Scott] (“the father”) agreed that their baby daughter, [Child A], should continue to live with the mother and spend time with the father. However, they were unable to agree a number of other key parenting issues, including whether the mother and Child A should be able to continue to reside in Perth (as the mother proposed) or be required to return to [State A] (as the father proposed).

2For the purposes of the hearing, the interim orders sought by the mother were as set out in her Minute filed on 25 September 2020, as amended by her counsel during the interim hearing. In summary, the key orders sought by the mother were that:

a)The child live with the mother in Perth;

b)The father spend time with the child in Perth on the basis that: (1) the father give prior notice of his intention to travel to Perth to spend time with the child; (2) he spend time with the child on three occasions per week for between two to three hours at a time; and (3) his time be supervised by either the maternal grandmother or a professional supervision agency;

c)The father have video communications with the child up to three times per week for approximately five minutes and in addition, the mother provide the father with a weekly video recording of the child and email in relation to the child’s development and any significant medical issues;

d)The father undergo a supervised carbohydrate deficient transferrin (“CDT”) test for the detection of alcohol on specified conditions;

e)The parties communicate with each other in relation to the child via the app Our Family Wizard;

f)The father complete a number of specified parenting programs and a men’s behaviour change program;

g)The father be the subject of a number of injunctions for the protection of the mother and Child A, including a non-molestation injunction and non-denigration injunction.

h)An Independent Children’s Lawyer be appointed on the usual terms.

3On the other hand, the interim orders sought by the father were as set out in his Minute handed up to the court on 1 October 2020. In summary, the key orders sought by the father were that:

a)The mother return the child to State A within seven days (and failing which, a recovery order issue for the delivery up of the child to the father);

b)Upon their return to State A the child live with the mother and spend time with the father for the next four months, on at least three occasions each week for at least four hours on each occasion;

c)The mother be restrained by injunction from breastfeeding the child when or within 12 hours of drinking alcohol;

d)Each party notify the other in relation to specified medical issues concerning the child;

e)Both parties complete an Anglicare “For the Kids” or alternative parenting course as agreed between the parties; and

f)Both parties be restrained by injunction from referring to the child other than by the name “[A Davis-Scott]”.

4Notably, the father did not make any proposals to spend time with or communicate with Child A in the event that she continued to live in Perth on an interim basis.

5Both parties relied upon a number of affidavits as follows.

a)The mother relied upon her case information affidavit filed on 28 July 2020 and her affidavits filed on 11 August 2020, 14 September 2020 and 25 September 2020, together with the affidavits of [Mr A] ([an accountant, working for Company A] in State A and a former work colleague of the mother), [Ms B] (a friend of the mother who resides in State A), [Mr C] (a friend of the mother who resides in State A), [Ms D] (the maternal grandmother, who resides in Perth, Western Australia), [Mr E] (the paternal grandfather, who also resides in Perth, Western Australia), and [Ms F] (a friend of the mother who resides in Western Australia).

b)The father relied upon his case information affidavit filed on 7 August 2020 and his affidavit filed on 22 September 2020, together with the affidavits of [Ms G] (a partner of the law firm representing the father in these proceedings) and [Ms H] (a paralegal employed by the same law firm).

6Again, it was notable that the father did not set out in his affidavits any evidence regarding his ability to spend time with and communicate with Child A if she continued to live in Perth, including when and how often he would be able to travel to Perth.

7A perusal of the various affidavits reveals that there are many factual disputes between the parties. I will refer to some of these matters, where relevant, later in these reasons. However, these are matters that cannot be determined in this interim application, particularly as neither the parties nor their witnesses have been tested by cross examination on their affidavit evidence. For the benefit of the parties what this means is that I cannot make any findings of fact where the evidence is in dispute. That will be the task of the judicial officer at trial.

BACKGROUND FACTS

8The father was born [in] 1976. He currently lives in State A in his own home and is a business owner.

9The mother was born [in] 1984. She and Child A currently live in Perth with the maternal grandparents and she is employed as [an accountant] on a part-time basis. Aside from Child A, the mother also has an eight year old daughter of a previous relationship named [Child B] who also resides with her.

10The parties met and commenced a relationship in August 2019 in State A. At the time the father was working in his business and the mother was employed as [an accountant at Company A] in State A. Within a short period of time, the mother fell pregnant with Child A.

11The parties commenced cohabitation in November 2019 when the mother and Child B moved into the father’s home. It appeared to be common ground that after they commenced living together, the parties had significant, ongoing relationship issues. Aside from differences in their respective circumstances and lifestyles, each party made a number of serious allegations about the other. The mother alleged that the father: (1) abused alcohol; (2) subjected her to family violence, including physical, emotional and financial abuse; (3) exposed Child B to his family violence perpetrated against the mother and subjected Child B to emotional abuse, including teasing and belittling the child and excessively punishing her for perceived wrongs.

12The father denied the mother’s allegations, and instead alleged that it was the mother, rather than him, who abused alcohol. He also alleged that the mother had a long history of mental health issues, related to her alcohol abuse.

13For her part, the mother denied that she abused alcohol, but did acknowledge drinking alcohol to excess on one occasion in late March 2020 after becoming very distressed about the parties’ ongoing relationship difficulties.

14The mother also acknowledged having a history of anxiety and depression, particularly around the time of Child B's birth. The mother maintained that as her pregnancy progressed in 2020, she suffered a reoccurrence of anxiety and depression due to the parties’ relationship difficulties and the father’s family violence.

15During her pregnancy, the mother sought and received ongoing support from her medical providers (including from a mental health team comprising a psychiatrist, a mental health nurse and/or other clinicians) and from her parents. In particular, in late March / early April 2020 the maternal grandmother travelled to State A to support the mother and stayed with the parties at the father’s home until early June 2020.

16There was little corroborating evidence in support of the father’s allegations. However, there was significant corroborating (albeit untested) evidence in support of the mother’s position, including:

a)The written records of the mother’s mental health team during (and after) the pregnancy, including of the mother consistently reporting concerns about the parties’ relationship difficulties, (including the father telling her in or about March 2020 that the relationship was over and to get out of his house by the time he got back from his work trip), the detrimental impact on her mental health from the father’s controlling and abusive behaviours and lack of support, and his treatment of Child B.

b)The evidence of the mother’s friend Ms B regarding their conversations during the pregnancy when the mother talked about the parties’ relationship difficulties, the father’s excessive alcohol intake, and his treatment of Child B.

c)The evidence of the mother’s friend Mr C regarding their conversations during the pregnancy when the mother talked about the father’s controlling and abusive behaviours and his cruel treatment of Child B.

d)The evidence of the maternal grandmother regarding her observations of the family when she was in State A (both at Christmas 2019 and then later in 2020) including: (1) the father’s harsh treatment and/or emotional abuse of the mother and Child B; and (2) the father’s heavy alcohol intake.

e)The evidence of the maternal grandmother that the mother did not abuse alcohol, including during the entire period she stayed with the parties in State A in 2020, not observing the mother to drink alcohol at all.

f)The evidence of the maternal grandmother regarding her conversations with Child B during the Christmas 2019 school holidays, during which Child B described the father’s “mean” behaviour towards the mother.

17Child A was born [in] 2020. It appears to be common ground that after Child A's birth, the parties continued to having significant ongoing issues in their relationship. The written records of the mother’s mental health team revealed that the mother continued to report concerns about the state of the parties’ relationship, the father’s treatment of Child B, his coercive and controlling behaviour and lack of support generally.

18It is common ground that the mother was Child A's primary carer after her birth. The parties disputed the level of the father’s involvement in Child A's care. The father maintained that he was “heavily involved”, whereas the mother maintained that he did not have much involvement and instead prioritised his work and social life. Again, there was some corroborating (albeit untested) evidence in support of the mother’s position, including:

a)The evidence of the maternal grandmother of the father’s very limited parenting role in the weeks after Child A's birth.

b)The evidence of Ms B that after Child A's birth, the mother complained that the father spent very little time with her and the children as a family and provided very little support in terms of helping with the baby.

c)The written records of the mother’s mental health team, including that the mother reported in mid-June 2020 that the father seemed to be “disengaging” from caring for the child.

19In or about early July 2020, the parties made arrangements for the mother and the children to travel to Perth on 9 July 2020. The parties disputed the purpose of the travel. The father alleged that the mother was “struggling” and not taking adequate care of Child A during the day and accordingly he suggested that the mother and children go back home to her parents in Perth for a few weeks. On the other hand, the mother alleged that the father effectively told her again that he was ending the relationship and she and the children should move out of his residence and go to Perth.

20It was not in dispute that the father completed a travel exemption application form for the mother and children to enter Western Australia (which application was necessary given the COVID-19 pandemic travel / border restrictions then applicable in Western Australia) and the father booked one-way tickets for the mother and children to fly from State A to Perth on 9 July 2020.

21The mother maintained that subsequently, she decided not to travel to Perth on that date with the children, in an attempt to save the relationship, but to no avail. The mother sought assistance from her mental health team and her parents to leave the father. The mother also contacted Centrelink, telling them that she was in a relationship characterised by family violence and that she wanted to leave but she was fearful of the father. The mother then received advice about obtaining an exemption from having to seek child support from the father.

22There was again some corroborating (albeit untested) evidence in support of the mother’s position, including:

a)A letter written by the maternal grandmother dated 8 July 2020 in support of the mother’s and children’s travel exemption application, in which the maternal grandmother referred to: (1) the breakdown of the parties’ relationship and the father’s insistence that the mother move out of his residence; (2) the mother’s mental health issues, lack of income and family support in State A; and (3) the proposed arrangements for the mother and children to live with the maternal grandparents at their home in Perth.

b)The evidence of the mother’s friend Mr C of their conversation in early July 2020, during which the mother informed Mr C that the father had booked flights for her and the two children to return to Perth, as he did not want her and the children there and did not feel that he had any connection or bond with Child A.

c)The written records of the mother’s mental health team during the period after Child A's birth as follows:

i)Save for some minor breastfeeding issues, no concerns were noted in the written records about the mother consuming alcohol or struggling to care for Child A and Child B.

ii)The records relating to the appointment on 16 July 2020 noted that the mother reported that: “the relationship with [the father] has broken down irretrievably and that she is making active plans to return to Perth where she has a network of support is (sic). [The father] has agreed for the couple’s daughter to leave the [State A], provided [the mother] does not seek child support. At the present time [the mother] is focussed on leaving [State A] with her children and establishing herself in Perth rather than pursue child support. She reported that [the father] has made several threats to her in this context.”

iii)The records noted that on 17 July 2020 the mother gave her psychiatrist permission to provide information to a social worker from Centrelink about the mother’s presentation in connection to her application for exemption from child support.

23On the evening of 19 July 2020, an incident occurred between the parties. The parties’ evidence about the incident differed significantly:

a)The mother alleged that the father returned home heavily intoxicated after attending a social event. The parties argued and he then demanded that the mother and Child B leave his home immediately, but refused to allow her to also take Child A. The mother rang her friend Mr C to urgently attend at the home to collect her and the children. When the mother attempted to take Child A from her bassinet and leave with both children, the father physically assaulted the mother in Child B's presence, including by pushing the mother against the wall, pulling her onto the floor, dragging her across the floor, strangling/choking her with her shawl for several seconds so that she could not breath. The mother tried to fight off the father during the incident, including by hitting and kicking him but he only ceased choking her when she involuntarily urinated her pants and he released the pressure around her neck and let her get up off the floor. The mother was then able to retrieve Child A from her bassinet, left the house with both children and met up with Mr C, who was waiting outside by his car.

b)On the other hand, the father acknowledged that a physical incident occurred between the parties after he returned home and that the mother and the children eventually left his property. However, he alleged that it was the mother (and not him) who was more intoxicated, that she instigated the incident by physically assaulting him first and that he only tried to physically stop her from taking Child A (including accidentally choking her) because he was concerned for the child’s welfare. He then rang the mother’s mental health team and reported that the mother had assaulted him and was attempting to leave his residence.

24Again, there was corroborating (albeit as yet untested) evidence in support of the mother’s version of events, including:

a)The evidence of Mr C as to what he observed as the mother and the children left the house and subsequently, including: (1) the mother saying to him as soon as she reached his car: “[The father] just dragged me across the floor and strangled me. I have wet my pants”; and (2) Child B being very distraught and crying.

b)The mother’s text message to the father late on 19 July 2020 about the incident.

c)The evidence of the maternal grandparents and the mother’s friends Mr A and Ms B of their respective conversations with the mother on 20 July 2020, during which the mother described the father coming home intoxicated and assaulting her the previous night.

d)The written records of the mother’s mental health team in relation to their contact with the mother on 20 July 2020, during which the mother described the father coming home intoxicated and assaulting her the previous night.

e)The written report of a counsellor who provided telehealth counselling to Child B and the mother on 25 July 2020, during which Child B described seeing the father strangle her mother and push her up against a wall.

f)The evidence of the maternal grandmother of her conversations with Child B since the incident, during which Child B described seeing the father “choke my mummy and throw her into the wall” and expressing fear of the father, including that he may “kill” her and “mummy”.

g)The written transcript of Child B's interview with the Western Australian Police on 26 August 2020 regarding the incident.

25Both parties agree that they separated on a final basis after the incident.

26The mother was initially reluctant to make a formal complaint to the State A Police about the incident (including due to embarrassment and concerns about [redacted]). However, she subsequently did so. As at the time of the interim hearing on 1 October 2020, the father’s position was that he had not been charged with any criminal offence relating to the incident.

27On or about 20 July 2020, the mother’s mental health team made a mandatory family violence report to the State A Police about the incident. On 20 July 2020, the mother’s psychiatrist also wrote a letter in support of the mother’s renewed travel exemption application, including stating that: “[The mother] has no close family in [State A] and finds herself with little support to care for two young children since the breakup of an abusive relationship. The stressful situation has exacerbated her mental health difficulties. Deterioration in mental health places her at risk of self-harm, and/or risk of taking her own life. I support [the mother’s] request to travel to Perth, WA where her parents live, where she can access support from her loved ones.”

28On or about 21 July 2020, the mother and the children were granted permission to enter Western Australia. They flew from State A to Perth on 22 July 20202 and moved in with the maternal grandparents.

29As at the time of the interim hearing, the mother and the children continued to live with the maternal grandparents and were supported by them, financially, practically and emotionally. The mother had also engaged with her medical providers in Perth to receive ongoing support in managing her mental health. Very recently, the mother has obtained part-time employment as [an] accountant.

30As at the time of the interim hearing, the father continued to live and work in State A. He has not spent time with Child A since 19 July 2020 and appears not to have taken up the mother’s offers to have video communications with the child. It also appears that the father has not provided any financial support for Child A since 19 July 2020, whether through the Child Support Agency or on a voluntary basis.

31Although the father previously sought that Child A undergo parentage testing to confirm that he is the child’s biological father, he no longer sought that the testing take place.

COURT PROCEEDINGS

32On 28 July 2020, the mother urgently initiated these proceedings seeking, inter alia, interim orders that Child A live with her in Perth and that the father be restrained by injunction from removing or attempting to remove the child from her care. On 31 July 2020, the court made ex parte orders to this effect. On 7 August 2020, the father then filed responding documents, including seeking inter alia, interim orders that the mother be required to return with the child to State A within seven days, failing which a recovery order issue for the delivery up of the child to the father. Assuming that the mother returned to State A with the child, the father otherwise sought interim orders that the child live with the mother and spend time with the father.

33On 10 August 2020, the Magistrates Court in Perth issued an interim family violence restraining order (on the mother’s application) to protect the mother and the children from the father. The father has objected to the interim order and a further hearing date has been set by the Magistrates Court.

34At the next hearing date in this court on 18 August 2020, the court made a number of procedural orders, including for the matter to be complex tracked. On 31 August 2020, I made further procedural orders, including for the competing interim applications to be listed for hearing before me.

35The parties attended a Case Assessment Conference with a family consultant on 9 September 2020, with the father participating by telephone. The consultant published a written report on 25 September 2020, including setting out each party’s allegations about the other in relation to family violence, alcohol abuse and mental health issues. In relation to the parties’ parenting relationship, the mother told the consultant that there “is no parenting relationship and her fear of the father influenced her decision to relocate to Perth for safety and to prevent ongoing risk from the father’s behaviours”. On the other hand, the father told the consultant that “he would like the mother to move back to [State A] so they can co-parent [Child A]. He discussed doing whatever was required to co-parent and he has offered to provide a two‑bedroom apartment in an area that is close to his residence...”

36Based on the parties’ self-reports, police reports, and medical records, the consultant concluded in the report that:

a)The mother experienced, and Child A (and Child B) were exposed to, significant coercive controlling behaviours by the father.

b)The father had limited insight into the impact his behaviours have on the children and the overall family functioning.

c)It was beneficial to the father to have others believe that the mother has mental health issues impacting on her ability to parent Child A. The father appeared to have limited awareness of the impact of his behaviours on the mother’s mental health and wellbeing.

d)The potential impact on the mother having to return to State A with the children could be significant and potentially unsafe as it would cause an increase in isolation from her support network in Perth, ongoing instability for the children and a significant deterioration in her mental wellbeing.

e)On the other hand, the father seemed to have the financial capacity and work flexibility to build an ongoing relationship with Child A in Perth if he chose to do so.

37The consultant made a number of recommendations, including that the father complete a CDT test, the father complete a men’s behaviour change program, the mother continue to engage in therapeutic support for herself and Child B, and that the father have supervised contact with Child A, either by a responsible person agreed to by both parties, or through a children’s contact service.

38On 14 September 2020, the Department of Communities completed a child safety investigation. Although it was not clear from the available evidence, it appears the investigation was triggered by the mandatory report made by the mother’s mental health team in State A following the incident on 19 July 2020. It was unclear from the available evidence precisely what information the Department had access to in completing its investigation. The Department substantiated that Child A and Child B had been emotionally harmed as a result of family domestic violence perpetrated by the father.

39The father does not accept either the consultant’s conclusions in the Case Assessment Conference report or the findings of the Department following the child safety investigation.

40The interim hearing proceeded before me on 1 October 2020. Both parties were represented by counsel at the hearing.

APPLICABLE LAW

41The parties’ respective parenting applications are made pursuant to Part 5 of the Family Court Act 1997 (WA) (“the Act”). In deciding whether to make a particular parenting order, s 66A directs me to regard the best interests of the child as the paramount consideration. Section 66C sets out how I determine what is in the child’s best interests. For proceedings commenced on or after 5 October 2013 s 66C(3A) provides that in applying the primary considerations, I am to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse neglect or family violence. The definitions of abuse and family violence have also been considerably widened.

42This application is confined to narrow issues and does not require me to consider the appropriate “live with” arrangements or the child spending equal time or substantial and significant time with the parties. Both parties agree that the child should live with the mother on an interim basis. Whilst both parties also agree that the child should spend time with the father, neither the mother nor the father propose that it be “equal’ or “substantial and significant” time. I am satisfied that it is not necessary to consider the matters set out in s 89AA of the Act. I will consider only the primary and additional considerations which are relevant to the narrow issues in this case. If I have not referred to a consideration, it is because I take the view that it is not relevant to this decision and/or because there is simply insufficient evidence and/or engagement by the parties with the consideration for me to make any findings.

PRIMARY CONSIDERATIONS

43The parties are significantly in dispute in relation to whether each of them poses a risk of harm to the child. Although the father denied the mother’s allegations in relation to family violence and alcohol abuse, there was significant corroborative evidence in support of the mother’s version of events. On the other hand, there was little cogent and/or corroborative evidence in support of the father’s allegations. Given the contradictory evidence of the parties, I am unable to make any findings in relation thereto. However on the basis of the available evidence:

a)I am not satisfied that Child A is at risk of harm in the care of the mother, including from being exposed to alcohol through breastmilk. This is particularly in circumstances where the mother is now receiving considerable support and assistance in Perth to manage her mental health, not only from her medical providers, but also from her parents (with whom she and the children now reside).

b)I am satisfied that there are reasonable grounds to believe that the father has subjected the mother (and Child B) to family violence and that he has abused alcohol. I am also satisfied that there is an unacceptable risk that: (1) the mother (and Child B) would be subjected to and/or exposed to family violence perpetrated by the father if they were required to come into contact with him; (2) Child A would be exposed to family violence perpetrated by the father, if she was also present; and (3) Child A would be exposed to the father’s alcohol abuse and possibly would suffer neglect if she was left in the unsupervised care of the father.

44I am satisfied that the mother has been Child A's primary carer since her birth and is highly likely to be the child’s primary attachment figure. I am satisfied that there is a real benefit to the child in having a meaningful relationship with the mother. Given the disputed evidence of the parties, I am unable to make any findings as to the nature and quality of the father’s relationship with Child A prior to the parties’ separation. Since separation, Child A has effectively had no contact with the father and any bond that she may have had with him is now likely to be minimal, if it exists at all.

45Nevertheless, I am satisfied that Child A will benefit from having a meaningful relationship with the father, provided that she is not thereby placed at risk of harm from the father. To this end, I am satisfied that the mother’s proposals for the father to: (1) spend supervised time with Child A, (2) undertake the CDT test, (3) complete the men’s behaviour change program, (4) be subject to the injunctions sought by the mother, and (5) communicate with the mother about Child A through the app are all appropriate short-term and long-term measures for the protection of Child A.

ADDITIONAL CONSIDERATIONS

46Child A is too young to express any view about her living arrangements.

47I am unable to make any findings on the available evidence as to the nature of the father’s (and any extended paternal family members’) relationships with Child A. As I have already found I am satisfied that the mother has been Child A's primary carer since her birth and is highly likely to be Child A's primary attachment figure. On the basis of the available evidence, I am also satisfied that Child A is being provided with opportunities to form close and loving relationships with Child B and other members of the extended maternal family, including the maternal grandparents.

48The parties agreed that Child A will continue to live with the mother on an interim basis. For the absence of any doubt, I am satisfied that the mother is able to provide properly for Child A's needs. On the other hand, on the basis of the available evidence, I am not persuaded that the father is able to properly provide for the child’s needs, even for very limited periods of time. To this end, I am satisfied that the father (and Child A) would benefit from the father completing the specified parenting programs as sought by the mother.

49On the mother’s proposal, Child A will continue to live with her in Perth. I am satisfied that if the mother and Child A do so, then they will continue to enjoy considerable ongoing financial support from the maternal grandparents, including being able to live in the maternal grandparents’ home, as well as considerable, ongoing practical and emotional support and assistance, such as help with childcare and Child B's school run to enable the mother to work part time.

50However, there would be significant practical difficulties and expenses in the father being able to spend time with Child A in Perth on a regular basis, including obtaining the necessary travel exemption permissions to enter Western Australia and meeting his travel and accommodation costs. In the event that the father is unwilling or unable to travel to Perth on a regular basis, then given Child A's young age, the father’s ability to form and/or maintain a meaningful relationship with her may well be detrimentally affected.

51On the other hand, the father proposed that if the mother and Child A returned to State A then: (1) he would rent a two bedroom apartment near to his residence for the mother up to the amount of $400 per week for a period of six months; (2) pay the mother $2,000 for her relocation costs; and (3) pay the mother $200 per week until such time as she recommenced employment. There would be little practical difficulty or expense in the father being able to spend regular time with Child A, as the parties would be living in close proximity to each other.

52However, I considered that the father’s offer of financial assistance was limited and appeared to assume that the mother would resume employment and meet her own living costs within a relatively short period of time. There was little, if any, evidence from which I could conclude that it would be financially and practically viable for the mother to resume employment in State A, having regard to her parenting / child care obligations to Child A (and Child B).

53On the available evidence, I am also not satisfied that the father is willing or able to provide the mother with any real practical or emotional supports in State A. In reality, the mother would have few supports available to her in State A and would be isolated from her support network in Perth. In such circumstances, I consider that there is a high probability that the mother’s mental health would again decline, potentially detrimentally impacting on her ability to care for Child A (and Child B).

54There was some confusion in relation to Child A's full name. In her court documents, the mother referred to Child A as “[A Davis]”, whereas the father referred to Child A as “[A Davis-Scott]”. The situation was not helped by the fact that a copy of Child A's birth certificate has not yet been filed with the court, albeit the mother did not oppose an order being made that she do so as soon as practicable.

CONCLUSIONS

55In this matter, I am satisfied that the presumption of equal shared parental responsibility does not apply because there are reasonable grounds to believe there has been family violence, as discussed earlier in these reasons. Accordingly, I am required to make such order as is in the best interests of the child.

56The parties agree that Child A will live with the mother and spend time with the father. The key issue for determination is whether the mother and Child A will live in Perth or State A on an interim basis.

57The father’s position was effectively that the mother unilaterally relocated to Perth with Child A without his consent and without any real justification. On the other hand, the mother’s position was effectively that: (1) the father had told her to move out of his residence and go back to Perth a number of times during their relationship, including prior to Child A's birth in or about March 2020 and again in July 2020; and (2) after the incident on 19 July 2020, the mother and the children returned to Perth, both to escape the father’s ongoing family violence and to seek the support and assistance of the maternal grandparents.

58Although I am unable to make findings in relation to the key disputed issues on an interim basis, the father did not appear to dispute that the mother had no maternal family support and only a limited support network in State A. Even on the father’s case, the mother “struggled” with Child A's care in State A and it was he who suggested she return home to her parents in Perth for a few weeks in early July 2020. Given the complete breakdown of the parties’ relationship after the incident on 19 July 2020, I am satisfied that the mother’s decision to return to Perth with the children was understandable.

59On balancing the various considerations, on an interim basis, I consider it is in Child A's best interests and reasonably practicable to make orders as proposed by the mother for the following reasons:

a)Firstly, I am satisfied that in Perth, the mother and Child A will continue to receive the benefit of considerable support from the maternal grandparents, including with accommodation, childcare and other practical assistance to enable the mother to work part time. On the other hand, if the mother was required to return to State A with Child A, then I am satisfied that the level of ongoing financial, practical and emotional supports available to the mother and Child A (as well as Child B) would be very limited. The mother’s mental health and wellbeing is very likely to be adversely affected as a result, potentially also adversely impacting on her ability to care for Child A (and Child B).

b)Secondly, I acknowledge that whilst Child A continues to live in Perth and the father in State A, it is unlikely that they will be able to spend frequent, regular time with each other and that Child A's ability to form and/or maintain a meaningful relationship with the father may suffer as a result. Nevertheless, in circumstances where: (1) the father did not make any proposals to in relation to spending time with or communicating with Child A if she continued to live in Perth, (2) the father was silent in his affidavits as to what arrangements he could make to travel to Perth to spend time with Child A, including when and how often, and (3) the father has not taken up the mother’s offers to have video communications with Child A, I consider that the orders proposed by the mother for the father to spend time with and have communications with Child A are appropriate in the circumstances.

c)Thirdly, given that I consider there is an unacceptable risk of Child A being at risk of harm from her father, I am satisfied that the father’s time with Child A should be supervised. I am also satisfied that the orders sought by the mother in relation to injunctions, the father’s completion of a men’s behaviour change program and the use of the communications app are appropriate.

d)Fourthly, given Child A's very young age and the fact that I am not satisfied on the available evidence that the father can provide for Child A's needs, I am also satisfied that the orders sought by the mother in relation to the father completing the specified parenting programs are also appropriate.

e)Fifthly, given the serious nature of the disputed allegations, I am satisfied that the appointment of an Independent Children’s Lawyer on the usual terms is warranted.

60In relation to the additional orders sought by the father:

a)As I have already observed earlier in these reasons, I am not satisfied on the available evidence that Child A is at risk of harm from the mother, including from exposure to alcohol through breastmilk. Accordingly, I decline to make the injunction as sought by the father.

b)The father sought an order that each party immediately notify the other of any serious illness or injury or any other emergency involving the child and promptly inform the other of any medical appointments that the child is due to attend. I am satisfied that such an order is appropriate and observe that the mother proposes to provide the father with regular weekly updates about Child A, including in relation to any significant medical issues, in any event.

c)The father sought an order that the parties be restrained by injunction from referring to the child other than by the name “[A Davis-Scott]”. In circumstances where neither the father nor the mother have provided the court with a copy of Child A's birth certificate, I cannot make any findings as to her full name. Accordingly, I decline to make the order as sought by the father and instead, subject to the parties having liberty to make further submissions, propose to make an order restraining the parties from using any surname for Child A other than that which appears on her birth certificate.

ORDERS

61I propose to make the following interim orders:

1.All previous parenting orders in relation to the child [Child A Davis] (or otherwise known as [A Davis-Scott]) (the “child”) born [in] 2020 be discharged.

2.The child live with the mother in Perth, Western Australia.

3.The father have Facetime video calls with the child up to three (3) occasions per week for approximately five (5) minutes, on such dates and times to be requested by the father in writing and with the father to initiate the call to the mother’s mobile telephone number at the agreed time.

4.In the event that the mother is unable to facilitate any call pursuant to the preceding order, the mother shall notify the father as soon as practicable and propose an alternative day and/or time for the call.

5.The mother shall provide to the father once every week with the following:

a) A brief video recording of the child; and

b)An email in relation to the child's development and any significant medical issues arising regarding the child.

6.In the event the father seeks to spend time with the child, the following shall apply:

a)The father's time with the child shall occur in Perth, Western Australia;

b)The father shall provide the mother no less than 30 days prior with the following:

i)his intention to travel to Perth to spend time with the child;

ii)details of the proposed travel including confirmation of the itinerary and the dates of his stay in Perth;

iii)a copy of his return flight tickets;

iv)the address of his accommodation in Perth and a copy of the reservation confirmation for the accommodation;

v)a copy of his Western Australia border exemption application submitted to the Western Australian government, and the border exemption approval received from the Western Australian government for the said travel dates; and

vi)the full names of all persons who will be travelling with him.

c)upon the father's compliance with sub-paragraph (b) above, the father spend time with the child on three (3) occasions per week for no less than two (2) hours and up to a maximum of three (3) hours on each occasions unless otherwise agreed between the parties in writing;

d)the father's time with the child shall be supervised by the maternal grandmother, or a supervision agency and the cost of such supervision agency shall be borne by the father;

e)unless otherwise agreed between the parties in writing, the father shall not bring a third party to the supervised visits; and

f)all handovers shall be supervised by the maternal grandmother, or a supervision agency and the cost of such supervision agency shall be borne by the father.

7.In the event the father's time with the child is supervised by the maternal grandmother, handovers shall occur at a venue to be agreed between the parties in writing.

8.The father undertake a supervised Carbohydrate Deficient Transferrin (CDT) test in accordance with chain of custody procedures with an accredited testing laboratory of the mother's election for the detection of alcohol, upon the following conditions:

a)that such CDT test be undertaken within 24 hours of such request being made by the mother or her solicitors;

b)the number of requests shall not exceed one (1) every three (3) weeks; and

c)the costs of the CDT test to be undertaken, be borne by the father.

9.Unless otherwise provided in these orders, the parties communicate with each other in relation to the child via the app Our Family Wizard with Tone Meter.

10.For the purposes of the preceding paragraph, the parties shall download and register on the app Our Family Wizard with Tone Meter and notify the other via the said app within 7 days of the date of these orders.

11.The father forthwith enrol in, engage and complete, at his own cost and expense, the following programs:

a)Post Separation Cooperative Parenting with Relationships Australia [State A]; and

b) Triple P with Catholic Care [State A]

and provide the mother with confirmation of his enrolment in and completion of the said programs.

12.The father forthwith enrol in, engage and complete, at his own cost and expense, the Men's Behaviour Change program with Catholic Care [State A], and provide the mother with confirmation of his enrolment in an completion of the said program.

13.The father be restrained by injunction and an injunction is hereby granted restraining him from:

a)denigrating, stalking, harassing, molesting or intimidating the mother, interfering with the mother's manner of living, or attempting to do so;

b)denigrating or describing in negative terms the mother in the presence or within hearing distance of the child;

c)denigrating or describing in negative terms the mother's family members and friends in the presence or within the hearing distance of the child;

d)discussing the proceedings in the Family Court, whether historical or current, with the child or with any other person in the presence of or within the hearing distance of the child;

e) denigrating or describing in negative terms the mother to any person within the social environment of the child, including but not limited to the parents of the child's friends, staff and teachers at the child's school or day care, and the staff and teachers or trainers where the child attends their extra-curricular activities; and

f)allowing any third party to engage in any of the actions or conduct described in sub-paragraphs (a) to (e) above.

14.The mother and/or her solicitors be permitted to provide a copy of these orders to:

a) the Western Australia Police;

b) the [State A] Police; and

c) the Department of Communities.

15.Each parent shall immediately notify the other of any serious illness or injury or any other emergency involving the child, when the child is in their care, and promptly keep the other informed of any medical appointment that the child is due to attend.

16.Both parties be restrained by injunction from referring to the child’s surname other than in accordance with the child’s surname as recorded in her birth certificate.

17.The child be independently represented at the further hearing of these proceedings and the Director – Client Services, Legal Aid Western Australia (“LAWA”) be requested to arrange such representation.

18.Within 7 days from the date of this order, the parties or their lawyers, provide copies of all documents filed by them in these proceedings to the Director – Client Services, LAWA except the documents the Caseflow Manager is to provide pursuant to these orders.

19.Within 7 days from the date of this order, each party file a Form 13 Financial Statement and provide a copy to the Director – Client Services, LAWA.

20.The Caseflow Manager cause a copy of this order to be forwarded to the Director – Client Services, LAWA together with copies of the following documents:

a) a copy of all orders made in the proceedings to date;

b)a copy of the Case Assessment Conference report dated 25 September 2020; and

c)these reasons.

21.The question of contribution by the parties to the costs of the Independent Children’s Lawyer be reserved.

22.There be leave to the Independent Children’s Lawyer to issue subpoena, other than to the Department of Communities.

23.In the event a Single Expert Witness is appointed, the said Expert have permission to inspect or inspect and copy any subpoenaed documents where the Independent Children’s Lawyer has such permission.

24.The Family Consultant have permission to inspect or inspect and copy any subpoenaed documents where the Independent Children’s Lawyer has such permission.

25.The parties comply with any request for information concerning the parties and the child from the Independent Children’s Lawyer within 14 days of such request.

26.The parties sign an Authority within 14 days or as requested by the Independent Children’s Lawyer, authorising the relevant persons/organisations to provide documents or information concerning the parties and the child.

27.This is an order to which Section 175 of the Family Court Act 1997 (WA) applies and to the extent that this order is inconsistent with the Family Violence Order made in the case between the parties on 10 August 2020 in the Magistrates Court at Perth being Complaint No. [Redacted] the aforesaid parenting order shall prevail and the Family Violence Order is invalid to the extent of the inconsistency.

28.The Deputy Registrar, Magistrates Court, 150 Terrace Road Perth cause a sealed copy of this order to be forwarded to the Commissioner of Police, the Deputy Registrar, Magistrates Court at Perth and the Chief Executive Officer of the Department of Communities.

29.All interim proceedings otherwise be dismissed.

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

KV

Associate

20 OCTOBER 2020