DEMPSEY and POND

[2019] FCWA 211

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: DEMPSEY and POND [2019] FCWA 211

CORAM: O'BRIEN J

HEARD: 1 & 2 AUGUST 2018

14 AUGUST 2018

28 NOVEMBER 2018

1, 2 & 3 JULY 2019

19 SEPTEMBER 2019

DELIVERED : 3 OCTOBER 2019

FILE NO/S: PTW 4549 of 2014

BETWEEN: MS DEMPSEY

Applicant

AND

MR POND

Respondent

Catchwords:

PARENTING – Where children have a variety of emotional and other issues – Where parties have effectively shared care for a long period – Where the wife has anger management and other issues and the children allege both verbal aggression and physical discipline by her – Where the wife failed to engage in the proceedings for extended periods and admitted intentionally frustrating the preparation of a single expert witness report – Where the husband continued to propose an equal shared care arrangement until the trial was part heard, before changing his position based on issues he had earlier perceived – Where children’s views have been expressed to the single expert witness – Where the presumption of equal shared parental responsibility does not apply – Where the children are at risk of physical and emotional harm in the care of the wife – Turns on its own facts.

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Self Represented Litigant
Respondent	:	Ms Taylor
Independent Children's Lawyer	:	[Ms D] & [Mr M]

Solicitors:

Applicant	:	Self Represented Litigant
Respondent	:	Kavanagh Lawyers
Independent Children's Lawyer	:	Legal Aid

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

Banks & Banks (2015) FLC 93-637

Bondelmonte & Bondelmonte (2016) 259 CLR 662

Stott & Holgar [2017] FamCAFC 152

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 Dempsey & Pond has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

1[Mr Pond] (“the husband”) and [Ms Dempsey] (“the wife”) are the parents of twins [Child A] and [Child B], born [in] 2007, and [Child C], born [in] 2011.

2The parenting proceedings commenced by the application of the wife filed on 13 August 2014, to which the husband responded on 23 September 2014, have self-evidently been protracted. They are also complex.

Background

3The husband was born in 1970. He is self-employed, operating [as an accountant]. The wife was born in February 1970. She works as [an office administrator] on a casual basis, generally 2 to 3 days per week.

4The parties were married in November 2003 and separated in late 2012. They are divorced. The husband has re-partnered; the wife has not. The husband and his new partner, [Ms P], were married in [mid] 2016, having lived together since late 2012. They have twin children of their own, [Child D] and [Child E] born [in] 2014. Ms P has a daughter, [Child F], from a previous relationship. Child F was born [in] 2007. She lives primarily with the husband and Ms P, spending time with her father one or two days per week.

5The parties and the children face a range of significant challenges not caused by the present dispute, but which impact upon it. It is appropriate to briefly summarise those challenges so as to give context to what follows in these reasons.

The wife

6The wife has not been diagnosed with any mental health difficulties, nor is she receiving therapy of any form. She denies any mental health issues, and disputes the accuracy of observations to the contrary.

7[Dr M], a clinical psychologist appointed as single expert witness (“SEW”) in the proceedings, administered a standard Personality Assessment Inventory (PAI) test to both parties. She interviewed both parties and the children, and conducted an extensive review of evidence and subpoenaed material. She observed the wife to be ‘somewhat defensive and reluctant to discuss personal problems’, having a ‘high degree of paranoia’, and a tendency to ‘[filter] information’. She regarded the configuration of PAI scores as suggestive of an unspecified Adjustment Disorder. She found no evidence of a major mental illness, but expressed “considerable concern about [the wife’s] personality presentation which was hostile, suspicious, critical, and rigid.”

8Noting that the wife has failed to comply with a number of orders during the proceedings, as detailed later in these reasons, Dr M observed her to have a lack of regard for authority and a level of defiance. She observed that the wife has characteristics which might tend to inhibit her ability to properly engage with therapy even if ordered, and that she did not hold a positive view of counselling or therapy for the children.

9Dr M was firmly of the view that the wife needs therapy to address her hoarding condition and anger management issues. The wife denies having any issue with hoarding or anger management. She expressed strong negative views about Dr M’s methodology and approach. She went so far as to suggest at one stage that Dr M had falsely reported what the children had said to her, although she later acknowledged that Dr M would have no reason to “make things up”.

10The wife had been opposed to the appointment of any SEW. As she “had an idea of what was going to happen” and believed that “information was going to be misinterpreted”, she admitted having knowingly frustrated the process after orders had been made.

11The wife’s view of the husband is almost entirely negative, and is strongly held. She described their co-parenting relationship as “pretty much non-existent”, saying that she did not think they would ever be able to communicate civilly, and that he is determined to “make [her] life hell.” When asked to identify his positive attributes as a parent she said that she could not do so other than to observe that she “guess[ed]” that the children have “a lot of free time [with him]”. She expressed the following view as to his motivations:

“To put it bluntly, [Mr Pond] wants more custody so that he, because I have most of the money, he wants more custody so that when he does financials he can get most of the money, and that’s all he wants. That’s all he’s concerned about, that’s all he’s ever been concerned about. So, he’ll do whatever he can to get most of the money, and that’s why all these comments are coming up; he puts the kids up to it. That is my view, because I cannot- like I keep saying, I don’t know where these comments are coming from and that’s my only reasoning for where these comments [by the children] are coming from.”

12She put that proposition squarely to the husband in cross‑examination, in the following terms:

[WIFE]: Isn’t it true that since your retirement, since our separation, that your aim for these court proceedings is to get the majority custody of the children so that you will get more of the financial assets? Because you don’t want to work?

[HUSBAND]:No.

13In disputing the proposition that the husband sought to avoid conflict, the wife said:

“According to the police subpoenas and according to the documentation, I got a VRO against him. I applied for two other VROs which I didn’t get- altercation, two altercations have been recorded in the police subpoena between himself and me; if he was avoiding confrontation or conflict he would’ve walked away rather than partaking so I dispute that. Again, I contest that in order to keep his home life harmonious with his wife so that she won’t leave him as well which is what he said to me, he can’t afford, literally,- financially afford her, for her to leave him, he takes it out on me. I have been the brunt of all of his aggression- well not all of it, most of it, the children as well. So, in fact he causes conflict to get his aggression out because he can’t do this at, in his house.”

14Until recently, a Violence Restraining Order (“VRO”) against the husband obtained on the application of the wife, was in place. That order initially prohibited the husband from communicating or attempting to communicate with the wife by any means whatsoever including text messages or other electronic means.

15In August 2017, while in his father’s care, Child A demonstrated disturbing behaviours which led the clinical social worker then counselling him to recommend that he be taken to the Emergency Department of [Hospital A]. Child A was admitted into hospital as there were concerns that he may be suicidal. The husband did not immediately notify the wife; rather, he emailed her sometime later. The wife made a complaint to the police, as by emailing her the husband had breached the then current terms of the VRO. The husband was arrested, and spent a night in the lock-up. He was subsequently convicted and a spent conviction recorded.

16In response to questions from me, the wife confirmed that ordinarily she would have expected the husband to inform her straight away that Child A was in hospital. She readily stated that she had made her complaint to the police, causing him to be charged with breaching the VRO, not because he had contacted her, but because of his “arrogance” in delaying two days before doing so.

17She did not appear to perceive any potential issue with her behaviour in that regard, and appeared puzzled when I enquired about it. That was consistent with her presentation throughout the proceedings before me.

The husband

18The husband suffers from ADHD, ongoing obsessed thoughts disorder, and [a medical condition]. He has a long-standing history of obsessive‑compulsive disorder, and began experiencing obsessional thoughts in his teenage years. He was admitted to hospital in 1995 for three weeks when experiencing “homicidal thoughts”; his therapist subsequently noted that he continued to suffer from severe obsessional thoughts. He was hospitalised again in April 2007 for nine days, at a time when the wife was pregnant with the twins. He presented with a relapse of OCD, reporting obsessional thoughts of violence over the preceding six weeks, apparently precipitated by ongoing psychosocial stressors.

19Dr M explained that obsessive thinking disorder is a type of anxiety disorder that “enslaves a person in a vicious cycle of thoughts and behaviour” and that sufferers “often find themselves troubled by a series of harrowing thoughts and obsessions, which they feel are out of their control.”

20Fortunately, the husband’s condition is effectively managed with medication, which he continues to take. He has sought assistance as required from a clinical psychologist. He was reported to be a willing participant in therapy, and to have responded well to treatment. His psychologist expressed confidence that he would seek further assistance if he felt unable to adequately manage his symptoms, and noted that while the nature of his condition is such that it tends to be episodic throughout life, it can be well-managed with a combination of psychological strategies and/or medications.

21Dr M noted that the husband’s responses in the PAI showed a tendency to portray himself as being exceptionally free of common shortcomings to which most individuals will admit, and as a result reluctant to admit to minor faults, perhaps even to himself. He exhibited a level of defensiveness and a tendency to minimise difficulties in several areas. That said, she characterised his interpersonal style as “warm, friendly, and sympathetic”, noting that he placed a high value on harmonious relationships and is likely to be uncomfortable with confrontation or conflict.

22The husband reported no animosity towards the wife, saying that he loves her as the mother of his children, but that “mentally she is dangerous” and that he did not like her actions. When asked in cross‑examination to identify the mother’s positive attributes as a parent, he did so readily and without apparent hesitation.

23Importantly, as detailed later in these reasons, the husband demonstrated an awareness of the individual needs of the children and a willingness to seek professional assistance for them as needed. Notwithstanding some proper criticism of his tendency at times to over medicalise the children’s issues, that stood in stark contrast to the wife’s presentation and approach.

Ms P

24Ms P has not been diagnosed with any mental health issues, and is not receiving any form of therapy. She presently works two days per week as a [social worker], and is studying part-time towards a university degree in [nursing].

25There is considerable animosity directed towards Ms P by the wife. In responding to Dr M’s report that Ms P had said that she wished she could have a positive relationship with the wife, but that “[her] heart races when [she has] to talk to [the wife], she is aggressive, she screams and yells”, the wife said this:

[WIFE]:Just regarding [Ms P] trying, saying that she wants to have a positive relationship with me, I believe she wants to do character assassination because she took some forms, Family Court forms, to the school to give the school a bad impression of me, so that’s another reason why I don’t think she really wants to have a positive impression; why she doesn’t want to have a positive relationship with me – and also, that fact that she eggs [Mr Pond] on in his aggression. Also we were, we did have a friendly relationship when she first arrived at the school, but then I discovered that she was husband shopping, so that ended that relationship.

Child A

26It is common ground that in 2014 Child A was the victim of inappropriate sexual behaviour by older students when he attended [School A]. The husband took Child A to Hospital A on 4 September 2014 after he complained of severe stomach cramps; during the assessment, Child A disclosed that he had been abused by five older boys on several separate occasions. The appropriate referral was made to the police and to the Department of Child Protection (“the Department”) and Child A was interviewed on 4 September 2014 and 20 January 2015. Child A was unable or unwilling to identify the perpetrators and no prosecution ensued.

27Child A began demonstrating troubling behaviours. The husband arranged for him to receive counselling from a mental health social worker, obtaining a referral from a general practitioner in August 2015 for that purpose. Initially, Child A received counselling from [Ms Y]; on her relocation overseas he began to receive counselling from [Ms X], who saw him for approximately 19 sessions.

28In a report dated 15 September 2017, Ms X noted that Child A was brought to counselling by the husband who “demonstrate[d] insight and [was] attuned to [K’s] struggles.” The wife spoke to Ms X by telephone on one occasion, communicating a distrust of counsellors, expressing the view that Child A did not need counselling, and making it clear that she was not supportive of counselling with Ms X continuing.

29In her report, Ms X noted that despite the formal reasons for his referral (relating to the sexual abuse) Child A’s “presenting problem and ongoing themes consistently represent[ed] his feelings of anger, sadness, isolation, alienation, anxiety and injustice regarding his mother’s parenting approach toward him, and his feelings of victimisation.” His emotional dysregulation was noted as being frightening to his siblings.

30Child A described his mother verbally and physically assaulting him, “target[ing]” him as distinct from his siblings, and having a fear of retribution from her. He was quoted as saying “it’s hard and awkward because I love her but I hate her, I don’t get it.”

31When Child A’s statements to Ms X were put to the wife in cross examination she not only denied their content and accuracy – she did not accept that he had made them. In her affidavit material she had asserted that Child A had been “coerceded [sic]” into making the statements.

32In May 2016, Ms X reported her concerns about the mother’s care of the children to the Department.

33In August 2017, Ms X referred Child A to the Emergency Department of the Hospital A as noted above. She expressed the view that she did not have the expertise to help Child A with his escalating problems, and his suicidal ideation in particular.

34Child A was then referred to [Counselling Service A]. Both parents participated in his intake. Child A was referred initially to a child psychiatrist, [Dr J]. After a dispute between the parties, an order was made by consent on 14 December 2017 to the effect that Child A should receive therapy only from Counselling Service A. After being discharged from that service, having completed treatment, Child A began to receive therapeutic support from [Ms E] at [Counselling Service B]. That support is ongoing. While supportive of that, Dr M expressed the opinion that Child A should also receive assistance from a child psychiatrist because of his intrusive thoughts, including suicidal thoughts.

35The wife disagrees with much of the content of the report of Ms X. In cross-examining Ms X, the wife challenged her notetaking and her methodology.

36The following exchange occurred:

[WIFE]: So [Child A] was referred to you due to his molestation at the school. That was the reason you were seeing him?

[MS X]: Yes, it was.

[WIFE]: So in your psychosocial report, there’s no mention of that in there; is that correct?

[MS X]: No, there is. It says:

[Child A] was referred to counselling at this practice on 22 August 2015 by [Dr T] for issues resultant from alleged sexual abuse by older students at his school, poor self-esteem, punishing himself and losing his temper easily.

[WIFE]: So that was from the referral?

[MS X]: Yes.

[WIFE]: But in the rest of the documentation from you, there’s no reference to the molestation; is that correct?

[MS X]: There’s no reference to the molestation because that’s not what [Child A] wanted to talk about. It’s not uncommon ‑ ‑ ‑

[WIFE]: So [Child A] – it’s alleged by you that [Child A] talked to you about issues not related to his molestation?

[MS X]: He spoke a little bit about the molestation; he spoke mostly about other things. It’s – it’s not unusual ‑ ‑ ‑

[WIFE]: So this – sorry to interrupt you, but this psychosocial report that you did was based on the sessions, the alleged sessions that you had with [Child A]?

[MS X]: The psychosocial report was based on the actual sessions I had with [Child A].

[WIFE]: So in the content of the sessions, there is no information about the molestation and there is no information about the father; is that correct?

[MS X]: There’s a little bit of information about how he feels picked on and doesn’t feel safe at school, but it’s not unusual – if a child doesn’t feel safe in their home, they can’t address trauma issues. Safety needs to be in place first.

[WIFE]: So you’re saying if a child doesn’t feel safe at home, then they’re unlikely to talk about the issues they have at their home; is that correct?

[MS X]: No. What I’m saying is that for [Child A], he needed to feel safer than what he was feeling before he got to sexual abuse issues. Because the sexual abuse had happened, but the other things that he was telling me about were happening right now so they were more urgent to him.

[WIFE]: So over the space of a year, he didn’t mention the molestation, according to you?

[MS X]: No, I didn’t say that.

[WIFE]: But this report doesn’t mention anything about the molestation, and it doesn’t – is that correct?

[MS X]: It – the – if the report was to mention everything [Child A] talked to me about, it would be this thick.

[WIFE]: Okay. In that case, then why is it – why is the report about his supposed issues with me? Why is there no information about ‑ ‑ ‑?

[MS X]: Because that is what dominated his therapy, and that’s what dominated his preoccupation. That’s what dominated his mind. That’s what dominated his feelings.

…

[WIFE]: My question is when you wrote this report, it was – you decided what you thought were the main issues to put in the report, according to what [Child A] said to you?

[MS X]: When I wrote the report, I wrote about what was immediately pressing for [Child A], which was the issues he was having with his mother. That’s what was immediately pressing for [Child A] to discuss and so that’s what I wrote about because that dominated the therapy.

37Ms X confirmed that she believed Child A was being truthful in what he told her, noting also that he was very strong in his view that he did not want the wife to know what he was saying. When asked by the ICL whether she would have concerns about Child A spending more than a few days at a time at his mother’s home, she said that she would. She also expanded on her view that the husband demonstrated insight into Child A’s needs.

38Ms E declined to give evidence or produce documents, citing s 10E of the Family Law Act 1975 (Cth) (“the Act”). Child A told Dr M that his ongoing therapeutic support from Ms E is “okay” and that he mostly attends for his anger problems.

39Child A is struggling at school in the sense that he continues to be disorganised, although he has strong academic abilities. Dr M described him as “struggling emotionally”, which in turn impacts on his development and maturity. While asserting that she herself did not have unrealistic expectations of Child A, the wife said that he has low self-esteem as he has unrealistic expectations to top his academic classes.

Child B

40Child B was described by the wife as an active child, who cannot keep still, loves performing, and “get[s] by” academically. She was described by Dr M as reserved and withdrawn during the interview, and apparently hesitant to disclose information. She identified herself as the “special child”, saying that while Child A and Child C “get yelled at” by the wife, she does not.

41Ms X saw Child B on three occasions for counselling in February 2016. She was referred by a general practitioner as suffering from anxiety, panic attacks, breathing problems, fear of dying, difficulty sleeping and eating. Child B “described a hostile parenting style” from the wife, saying “mum is always angry” and that “it’s better at dad’s”. She is not presently receiving any form of therapy. Dr M described her as “stuck in the middle of being loyal to her mother and wanting to enjoy being with her father.” She was noted by School A staff in November 2017 as showing signs of stress, especially on Wednesday towards hand over time, and as being “often embarrassed and flustered when her mother is present and exchanging belongings”.

42Dr M noted that more recent feedback from Child B’s current school did not highlight any concerns. That said, her position as the “go-to child inevitably plac[es] additional unnecessary pressure on her.” In Dr M’s view, she would benefit from therapy.

Child C

43Child C has not had individual therapy. She was described by Dr M as “bubbly”, with a lot of friends. The wife does not regard her as having any emotional problems or issues. Her current class teacher, [Ms H], noted that Child C has recently demonstrated increased anxiety. Her previous teacher noted that Child C “enjoys the company of her peers, has a positive attitude towards school, and is respectful and interacts well with the teachers”. She raised no significant concerns about Child C.

44The husband told Dr M that Child C is not presently doing well with regulating her emotions. Dr M took the view that Child C is struggling emotionally, which is impacting on her development, but that her maturity is in line with her age.

The other children

45Ms P’s daughter, Child F, has been diagnosed with ADHD and anxiety. She is receiving therapy.

46It is common ground that there have been difficulties in the relationship between Child F and Child B, described by Ms P as “fire and ice”. Both girls were accused of taking the personal belongings of the other; the father and Ms P rearranged the room allocations at their home so that the girls would no longer share a room. As far back as September 2014, they had sought some assistance from Ms Child D to equip themselves with strategies to reduce tension between the children. That said, the husband expressed the view that the relationship between Child F and Child B has shown signs of improvement in recent months.

47The twin [children] of the husband’s marriage to Ms P, Child E and Child D, are both autistic. They are attending pre-primary, and have received positive reports to date. They have a “support puppy”, and attend occupational therapy on Monday and speech therapy on Tuesday. They are being regularly reviewed by a paediatrician.

48While Child E and Child D are doing well, there are obvious challenges involved in their care.

The proceedings to date

49The children the subject of the proceedings have been in a shared care arrangement since the parties separated. Initially, by informal arrangement, they spent three days a week with the husband and four days a week with the wife. Pursuant to interim orders made by consent at the first Court event on 1 September 2014, that arrangement was structured so that the children would live with the husband from after school Wednesday or 3.30 pm on a non-school day until Saturday at 5:30 pm each week. Effectively, therefore, the children were spending three school nights per week with the wife and two with the husband, one non-school night each week with each of them, and a full day on the weekend with each of them.

50The proceedings were first programmed towards a trial by orders made on 2 October 2015, at which a Readiness Hearing was scheduled for 15 January 2016. It may fairly be noted, therefore, that had the parties done all that was required of them to ensure the readiness of the matter for trial, the proceedings could likely have been brought to a conclusion in or about March 2016.

51Issues arose, however, and an order was made on 23 March 2016 permitting the husband to file an application for the appointment of a SEW. A further Readiness Hearing was scheduled for 23 May 2016. Still further issues arose and the readiness hearing did not proceed.

52[Dr W] was appointed as SEW on 7 July 2016. There were difficulties as the wife did not engage with him. On 5 April 2017, orders were made to progress the matter towards a trial before a Magistrate, which was direct listed for 2 August 2017. On 19 July 2017, that trial date was vacated as the parties had not readied the matter.

53On 21 September 2017, orders were made for the children to be independently represented by an Independent Children’s Lawyer (“ICL”). A Case Assessment Conference was scheduled for 13 November 2017, and on 30 November 2017, on the application of the ICL, [Dr N] was appointed as SEW in the case in place of Dr W. That step was taken as the mother had failed to engage with Dr W, despite his efforts, and he considered himself unable to continue in the role.

54Again, the mother failed to engage with the SEW. There were also issues with the potential cost of Dr N’s involvement, and the father withdrew his earlier consent to make necessary payments.

55There was then a dispute between the parties arising from the very significant issues confronted by Child A at his school, where he had been the subject of sexual abuse from other students. The husband sought to address those issues both by changing the children’s school, and by seeking out therapeutic assistance for Child A. It must be remembered that the older children who abused Child A were likely still attending the school, and that they had not been identified to the school or to other authorities at the time of that dispute. The husband was met with a lack of cooperation by the wife in some respects, and active disagreement on her part in other respects. In particular, she actively opposed the proposition that the children should change schools. It became necessary for the husband to bring an interim application.

56On 14 December 2017, orders were made for the parties to attend upon a clinical psychologist for reportable family therapy. Various ancillary orders were made to facilitate that. Orders were also made requiring the parties to do all things necessary to facilitate Child A receiving appropriate mental health treatment through Counselling Service A and for the exchange of information between them. The earlier orders regarding the time the children were to spend with each parent were discharged, and new orders made it clear that the children would live with the mother from 5:30 pm Saturday until 5:30 pm Wednesday each week, and with the husband from 5:30 pm Wednesday until 5:30 pm Saturday each week.

57It is noteworthy that those orders were made by consent, albeit they were proposed by the ICL.

58Notwithstanding that, the wife again did not engage as required. The reportable family therapy did not happen.

59On 10 January 2018, the presiding Magistrate delivered his reserved decision in relation to the issue of the children’s schooling. He made orders facilitating the change of schools which had been proposed by the husband, and actively opposed by the wife. The proceedings were listed for a Readiness Hearing on 6 April 2018, and included in the callover on 25 May 2018. Orders were also made for the filing of trial documents.

60The proceedings came back before the court on 27 March 2018 at the request of the ICL. Yet another order for the appointment of a SEW, this time Dr M, was made. A further order was made for the parties to attend upon [Mr D] for reportable counselling pursuant to the orders previously made on 14 December 2017.

61Again, the wife did not engage and did not comply with those orders.

62The trial initially listed to commence before me on 1 August 2018 was to proceed on an undefended basis. The wife’s application had been dismissed by the operation of orders made on 28 June 2018, in circumstances where she had failed to properly engage in the proceedings for some considerable time, and did not file documents for the purposes of trial despite being aware of the requirement that she do so, and having been granted extensions of time for that purpose.

63Having written to the Court on 25 July 2018 indicating that she would propose to seek that the trial be adjourned, the wife filed a Minute of the orders sought by her, and an affidavit of evidence-in-chief on 31 July 2018. On her oral application, for reasons given extemporaneously, the order dismissing her substantive application was discharged and she was permitted to rely on her late filed affidavit.

64The trial then proceeded over three days in August 2018, but was unable to be completed in the time allocated. It was adjourned part heard, in circumstances where the wife’s case had closed and the cross examination of the husband was almost completed. A further hearing date of 28 November 2018 was allocated to complete the trial.

65In the intervening period, various issues regarding the children arose. Both parties sought to significantly change the relief that they sought. The single further hearing day allocated was insufficient to enable the trial to conclude, and as the wife was self-represented throughout the proceedings the resumption of trial was delayed to enable her to properly respond to the husband’s changed position.

66Ms D of Legal Aid WA was unavailable to continue as ICL by early-January 2019, and was replaced by Mr M, also from Legal Aid WA.

67The appointment of a SEW was revisited, after earlier appointments had proven fruitless as outlined above. Dr M was reappointed on 7 January 2019.

68The trial resumed on 1 July 2019, after both parties had been granted leave to reopen and procedural orders had been made to facilitate their filing of further affidavits. The husband filed a further affidavit pursuant to those orders; the wife did not, notwithstanding being granted extensions of time within which to do so and having the consequences of a failure to do so explained to her at interlocutory hearings.

69The report of Dr M was only distributed to the parties a few days prior to trial. Its preparation had been delayed due to further difficulties in engaging with the wife. Both parties were therefore given leave to give further evidence-in-chief in response to that report and to documents recently produced by the children’s schools.

70The evidence concluded on 3 July 2019. The allocated time was insufficient to accommodate closing submissions.

71Sensibly, given the manner in which the trial proceeded, counsel for the ICL proposed that orders be made enabling the parties to make their closing submissions in writing, with the benefit of time to carefully consider the evidence. Orders were made by consent in those terms. The agreed timetable gave the wife the benefit of receiving the submissions of the ICL and counsel for the husband before being required to craft her own.

72The ICL and the husband filed their submissions in accordance with those orders.

73The wife did not. Her written closing submissions were due to be filed and served by no later than 23 August 2019. On that day, she wrote to the Court explaining that she had encountered some difficulties, but hoped to be able to complete and file her submissions by 30 August 2019. She sought an extension of time to that end, which was granted.

74When the wife’s submissions had still not been filed within the extended period granted, my staff made numerous efforts to contact her by telephone, without success. A number of messages were left on the wife’s voicemail, and with her mother, requesting a return call; the wife did not respond to any of those messages.

75To ensure that the wife had every reasonable opportunity to present her closing submissions, at my direction the matter was relisted for a further hearing at 10.00 am on 19 September 2019. The parties were notified of that hearing by letter dated 10 September 2019, which was sent to the wife both by post and by email. The letter advised that if the wife’s written closing submissions were filed prior to the scheduled hearing, the listing would be administratively vacated. It further explained that if no written closing submissions were received by the wife prior to the scheduled hearing, she would be given the opportunity to make oral closing submissions at that hearing.

76The wife did not file her submissions. She did not attend the hearing. She was called in the precincts of the Court on several occasions. At the commencement of the hearing, my staff telephoned the wife from court but the call was diverted to voicemail.

77The matter was then stood down for half an hour to cover the possibility that the wife intended to attend court, and had been delayed. A further call was placed to her number, with a detailed message being left advising her that the matter had been stood down, noting the time at which the hearing would resume, and providing the number the wife should call if she wished to participate in that hearing by telephone.

78The hearing then resumed without any call from the wife. A further call was made to her number; on this occasion, the call was not diverted to voicemail. The call was answered by an unknown person, who then hung up.

79I am satisfied that the wife was given every opportunity to make closing submissions, either in written form or orally, and that it is accordingly appropriate to proceed to judgment.

Relief sought and matters in issue

80At the time the trial commenced in August 2018, the husband proposed that he have sole parental responsibility for the children in relation to their long-term education and health, but that otherwise the parties have equal shared parental responsibility. In that regard, he noted his intention that the children remain in their then primary school and thereafter attend [High School A], but that he be required to consult with the wife in relation to any deviation to that proposed path.

81He sought orders whereby the children would live in a week-about shared care arrangement, with change over taking place at 4.00 pm each Sunday. He proposed that arrangement should continue through school holidays, subject only to each party having an opportunity on reasonable notice to take the children away for extended holidays on appropriate arrangements for make-up time being made. He otherwise proposed specific orders in relation to birthdays, Christmas, Father’s Day, Mother’s Day and other special occasions, specific orders in relation to handover, and orders for the exchange of information.

82While the husband’s position subsequently changed as detailed below, it is noteworthy that most of the concerns referred to in support of that change were not new. While there were additional incidents, the concerns themselves had been expressed by the husband at the time that he proposed the arrangement outlined above.

83At the commencement of the trial, the wife sought the orders set out in her Minute filed the day prior to the trial, which was consistent with orders she had previously sought. In particular, she sought sole parental responsibility for the children, and a continuation of the current arrangements whereby the children change houses each Wednesday and Saturday afternoon. She sought a minor adjustment to the timing of those changeovers. She sought various specific issues orders.

84In her Papers for the Judge filed prior to trial, the ICL submitted a Minute of final orders proposed as being in the children’s best interests.

85In relation to the central issues, at that stage the ICL submitted that the parties should have equal shared parental responsibility for the children, but that in the absence of agreement and pursuant to a proposed structure for consultation, the husband should have the final say as to the high school to be attended by each child. She proposed further that orders be made requiring the parties to facilitate Child A attending upon Counselling Service B in [Suburb A] for ongoing therapy, and for the children to complete protective behaviours training.

86The ICL submitted that the week about arrangement proposed by the husband was not in the best interests of the children, and that the current arrangement whereby the children are in the care of the wife from 5:30 pm Saturday until 5:30 pm Wednesday each week, and in the care of the husband for the balance of the week, should continue.

87Otherwise, the ICL proposed various orders for the exchange of information and the like which I perceived at the time to be non-contentious.

88By the time the trial resumed in July 2019, both parties advanced proposals very different from those outlined above.

89The husband sought orders whereby the children would live with him and spend time with the wife each alternate weekend from 10.00 am Saturday until before school on Monday. During the hearing he made it clear that he was open to an alternative option, whereby the children would spend one night per week with the wife, rather than two consecutive nights on alternate weekends. On either scenario, he proposed that the term time arrangements continue during school holidays, with an option for one extended holiday period with each parent.

90The wife sought orders whereby the children would live with her and spend time with the husband each alternate weekend from 5.00 pm Friday until 5.00 pm Sunday. She too proposed that the term time arrangements continue during school holidays.

91Both parties sought detailed orders in relation to communication, special occasions and specific issues which do not require repetition in these reasons.

92At the commencement of the second day of the resumed trial, the wife changed her position again. Centrally, she reverted to a proposal that the current arrangements for the care of the children whereby they are in the care of the husband from 5:30 pm each Wednesday until 5:30 pm Saturday should continue. The explanation she gave for that change was explored in cross-examination :

[MS TAYLOR]: So, it was only after you were asked questions yesterday afternoon about your case that you changed your mind, is that right?

[WIFE]: No.

[MS TAYLOR]: When did you change your mind?

[WIFE]: When I got home last night, and was physically ill from the proceedings and after talking to my children, not about the case- well actually, no, I shouldn’t say talking. When we were talking together, having a general discussion, and when I was reviewing the documents of what I wanted to submit today, that I came to the conclusions that this situation is just ridiculous and it would be a better scenario for the children to leave things as is according to what documentation had already been presented by various parties, well, parties yeah.

… [Ms Taylor then asked questions about what she may have said to the children the night before]…

[MS TAYLOR]: What was it about what they said that contributed to you changing your mind about what you were asking the court to do?

[WIFE]: I can’t give you specifics, it was just generally that having a dramatic change for them either way would not be in their best interests.

[MS TAYLOR]: Even though that’s what you had been seeking for the best part of five months or more? Up to going home last night?

[WIFE]: Correct. Because I was very concerned about the comments the children supposedly had been making and if they had, if they had indeed make them on all the documentation that I thought they shouldn’t have been put in that position to make them, and that was why I hold that position that I didn’t think being with their father was a good influence because of the- the sorry my minds gone blank- because of the father putting pressure on the children to say and do certain things. I didn’t think that was a good environment for the children. But then, after last night, I reconsidered because I thought that it’s already half way through until they’re 16, they’ve already had almost seven years of this routine, so to have such a dramatic change for the remaining, the remaining four years which is a third of time I didn’t think would be a good, a good situation for them to be in.

93The ICL did not propose specific orders at the resumption of the trial, reserving a position in that regard until the evidence had been completed. The possible options in that regard were raised squarely by him during the course of the trial, and both parties had the opportunity to respond to them.

94In his written closing submissions, the ICL submitted that the husband should have sole parental responsibility, subject to a requirement to consult with the wife about major long-term issues, consider her views, and make a genuine effort to come to a joint decision. He submitted that the children should live with the husband, and that he should do all things necessary to facilitate their continued attendance for therapeutic support as recommended in the SEW report.

95The ICL submitted that the children should spend time with the wife from 10.00 am to 4.00 pm each Sunday, from the conclusion of school or 3:30 pm until 7.00 pm each Wednesday, and at such other times as could be agreed. He made it clear in his submissions that he had considered whether the mother’s time with the children should be supervised. He concluded that supervision was not warranted, given the children’s ages, their history of making disclosures, and the capacity of the husband to take protective steps where appropriate. He nevertheless submitted that the children’s time with the wife should be less than that in place at the time of trial, saying that “the evidence strongly suggests that [her] home environment… is not conducive to proper parenting… and… a reduction in time will hopefully focus [her] in spending meaningful time with the children in circumstances where the stressors of parenting are minimised.”

96He otherwise proposed various specific issues orders.

97In his written submissions, the husband confirmed that he continued to seek sole parental responsibility, but expressed his willingness to consult with the wife as proposed by the ICL. He proposed that the children live with him, and spend time with the wife each Sunday from 9.00 am to 6.00 pm. Somewhat curiously, he submitted that in the event the Court considered it to be in the best interests of the children to spend a weekend each month with him and with their younger siblings, that should be the last weekend in each month, but he did not actively seek such an order.

98The husband indicated that he did not propose that the wife’s time with the children be supervised, notwithstanding the recommendations of Dr M referred to later in these reasons. He did not see supervision as a practical arrangement going forward, and considered the risk of harm posed by the wife as being mitigated by the absence of overnight time. He largely adopted the orders proposed by the ICL, other than in two respects. Firstly, he regarded the proposal that the children spend time with the mother after school each Wednesday as unduly disruptive, and introducing additional potential for conflict and distress at handovers in circumstances where the children’s teachers had observed issues in that regard relating to the wife’s behaviour. Secondly, he did not agree with the proposal that the children have telephone communication with the wife on three occasions per week (albeit it appears he may have misinterpreted the ICL’s proposal in that regard as to the duration of calls) arguing that the wife interrogates the children and that they need a break from her.

The law

99In deciding whether to make a particular parenting order, I am required to regard the best interests of the children as the paramount consideration.

100Section 61DA of the Act provides for a presumption that it is in the best interests of the children for the parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent or other relevant adult has engaged in abuse of the child or family violence. Even if the statutory presumption applies, it may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the children for the parents to have equal shared parental responsibility.

101If an order for equal shared parental responsibility is to be made, I am required to consider whether the children spending equal time with each parent is in their best interests and whether such an arrangement would be reasonably practicable. If so, I am then required to consider making such an order.

102Again against the background of an order for equal shared parental responsibility being made, if I do not make an order for the children to spend equal time with each parent, I am required to consider whether spending substantial and significant time (as that term is defined in the Act) with each parent would be in their best interests and reasonably practicable. If so, I am required to consider making such an order.

103In determining what is in the children’s best interests, I am required to consider the matters set out in s 60CC of the Act. While those matters are divided in the legislation into primary and additional considerations, the primary considerations do not necessarily outweigh any combination of the additional considerations. I am required also to be guided by the objects of the relevant part of the Act, and the principles underlying them.

104Subject to the requirements of procedural fairness, I am not required to simply choose between the proposals advanced by the parties and may make other orders not specifically proposed by them.[1] I record that I explained that concept in some detail to the wife at trial.

[1] Stott & Holgar [2017] FamCAFC 152.

105 The issues joined will dictate which of the factors set out in s 60CC are relevant. The requirement to consider each factor does not mean that each factor must be expressly discussed in a judgement, where the factor in question has no sufficient relevance in the particular circumstances of the individual case.[2]

[2] Banks & Banks (2015) FLC 93-637.

106Ultimately, the making of a parenting order involves the exercise of judicial discretion. The primary considerations set out in the legislation are “matters to be borne in mind is consistent with the objects” of Part VII of the Act. The additional considerations set out in the legislation:

… require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgments in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of the child”.[3]

The wife as a self-represented litigant

[3] Bondelmonte & Bondelmonte (2016) 259 CLR 662, [32].

107The husband was represented by counsel at trial. The wife was self‑represented. At the commencement of the trial, I explained to her the sequence of events at trial, including the nature and importance of cross-examination and the purpose and scope of re-examination.

108The wife is an intelligent and well educated person, who had clearly spent considerable time preparing for trial (and in particular the second tranche of hearing days) both in terms of presenting her evidence, and cross-examination of the husband and witnesses. She had reviewed at length all the documents produced under subpoena in preparation for the second tranche of hearing days. While she understandably struggled at times, I endeavoured throughout to ensure that I properly understood her submissions, and clarified the relief that she sought. She had no hesitation in asking me questions when she felt it necessary, or for that matter making submissions seeking to dissuade me from a foreshadowed course of action, or a proposition raised.

109As noted above, while the wife did not make closing submissions she was given every reasonable opportunity to do so.

110I am satisfied that the trial proceeded in a manner which afforded procedural fairness to both parties.

The evidence at trial

111The husband relied on his affidavits filed on 18 September 2017 and 6 April 2018, and affidavits of his wife, Ms P, and his brother, [Mr O], both filed on 6 April 2018. He relied also on his updating affidavit filed on 29 May 2019.

112Reports by Ms X were exhibited to the husband’s affidavit. As those reports were relied upon, Ms X attended trial to give evidence. She confirmed the content of her reports, and was cross‑examined. Ms P and Mr O also presented for cross‑examination; by agreement, Mr O participated in the hearing by telephone as he resides outside Western Australia.

113The wife relied on her trial affidavit filed on 31 July 2018. That document as filed had annexed to it a significant number of exhibits, many of which were of no relevance to matters in issue in the proceedings. Accordingly, I made orders whereby only exhibits specifically tendered and accepted by me to be relevant would be admitted into evidence. The wife initially omitted to tender various documents during the course of her case; sensibly, counsel for the husband and counsel for the ICL raised no objection to the tender of those documents later in the trial. The wife did not take advantage of the orders made permitting her to file an updating affidavit for the purposes of trial. Nevertheless, and again without objection, I permitted her to rely also on an affidavit filed by her on 7 February 2019 in the context of interlocutory proceedings.

114The ICL relied on affidavits filed by her on 28 November 2017, 12 December 2017, 13 March 2018, 16 July 2018, 12 June 2019, and 20 June 2019. She relied also on documents handed up in court on 30 November 2017, reflecting the outcome of her meeting with the children a week previously, and a report provided by Counselling Service A in relation to Child A. Various other documents were tendered in the course of the trial.

115The memoranda prepared by family consultants on 29 August 2014, 24 October 2014, 28 July 2015 and 13 November 2017 were also in evidence, as was the response of the Department dated 19 May 2017 to a Form 4 notice filed in the proceedings, and documents produced under subpoena by the Western Australia police.

116Dr M’s report dated 24 June 2019 was in evidence, exhibited to an affidavit sworn by her the next day.

117Amongst the documents annexed to the affidavits of the ICL were reports from teachers at [Primary School A] and High School A. The teachers from Primary School A were required to present for cross examination, and did so. Again, the parties sensibly agreed that they could participate in the hearing by telephone.

Observations as to the oral evidence at trial

118The wife understandably struggled at times to limit herself during cross-examination to simply answering questions rather than arguing her case. That said, while her thinking appeared at times somewhat scattered I do not doubt that she endeavoured to give her evidence honestly. That of course does not mean that her recollections were necessarily accurate, nor that her honestly held beliefs were supported by evidence.

119The husband was more measured in his presentation, although he too struggled at times to refrain from engaging in argument with the wife when she was cross-examining him. Again, in my view he gave his evidence honestly. He presented as being more open than the wife to the possibility of being incorrect in some of his recollections, and as being more insightful when challenged in relation to some of the actions and positions adopted by him. He made appropriate concessions without apparent hesitation.

120Ms P gave her evidence in a straightforward and direct manner, while again struggling at times to refrain from engaging in argument. I regarded her as an honest witness.

121Similarly, Mr O gave his evidence in a direct and open manner. He was frank about the nature of his relationship with the husband, and did not seek to advocate on his behalf, confining himself to appropriate factual statements. I regarded him as an honest witness and accept his evidence.

122The teachers who gave evidence by telephone did so in an entirely professional, open and straightforward manner. I accept their evidence.

123Ms X also gave her evidence in a professional and straightforward manner. While she bristled somewhat at questions by the wife which impugned her integrity and professionalism, she nevertheless answered those questions directly and appropriately. I accept that her factual recount was accurate, and that the opinions she expressed were genuinely held.

124Dr M also gave her evidence in an appropriately professional and thorough manner. She was cross-examined at length, and expressed her opinions in a considered fashion. She was appropriately aware that, in expressing those opinions, she had not had the benefit of hearing all the evidence at trial and she caveated her remarks accordingly. I accept that her factual recount was accurate, and that the opinions she expressed were genuinely held.

The presumption of equal shared parental responsibility

125In short, the evidence supports a conclusion that there are reasonable grounds to believe that the mother has engaged in family violence.

126On 7 March 2017, the husband contacted the Department with concerns for the children while in the care of the wife. The report included what were alleged to be photographs of the wife’s house, and a photograph of a bruise on Child C’s leg. A forensic interview of all three children was conducted by [a support team], and the children disclosed that the bruise was caused by the wife slapping Child C with an open hand. The children had initially reported that the bruise was caused by a cousin whilst in the care of the wife, but later said that it was the wife and that she had asked them to lie. That said, I note that the husband was observed by the support team officers to be “forceful and directive” towards the children prior to the interview, that the wife had provided a plausible explanation, and that there was no evidence of ongoing persistent physical harm of the children by the wife.

127On 22 May 2017, the Department received a family violence incident report involving the parties. The wife alleged that the husband had scratched the side of her vehicle intentionally, that she had asked him to pay for the damage, and that he had stated that she would not be able to prove that he had caused it.

128While the information provided to the Department was highly conflictual, it was the Department’s conclusion that the children were witnessing ongoing and significant conflict between the parents, which was likely to impact on their emotional well-being.

129In her report dated 15 September 2017, Ms X said that Child A had told her that the wife “verbally and physically assaulted” him, that she shouts at him, “goes crazy, she throws things, hits things and people, smashes things and hits us whenever she is angry”. When challenged in cross-examination as to whether in fact Child A had said what was reported, Ms X firmly confirmed that he had. She confirmed having taken contemporaneous file notes “practically verbatim”. She confirmed that she believed Child A “because of what [she] observed and what [she] heard”, describing his affect, behaviour and speech as congruent.

130On 26 May 2016, Ms X reported to the Department that Child A had said that the wife had punched him and kicked him, and that one of the other children had confirmed a hostile parenting style where “mum is always angry”.

131Dr M reported that two of the children indicated that the wife “hits them a lot” and one stated that the wife calls that child names. While in her written report Dr M took care not to identify which child had made which disclosure, it was clear to all at trial that the disclosures just mentioned were made by Child A and Child C. Child C also said that when she is naughty the wife locks her in the bathroom and scares her by turning the lights off. She said further that the wife “hits [her] a lot of the times on the legs or arms when [she’s] naughty”, and that she does not like it when the wife shouts.

132Importantly, Dr M reported that what Child A and Child C had said about the wife’s behaviour towards them was separately confirmed by Child B. In cross-examination, she agreed that Child B’s disclosures in that regard were significant, given her self-perceived favoured position with the wife, and that of all the children she is the closest to her.

133Like Ms X, Dr M believed the children. While she acknowledged the logical possibility of the children being influenced by the husband, she dismissed any suggestion that they had been other than truthful in their disclosures to her.

134Ms H, who is Child C’s current classroom teacher said that “the only concern [she had] had for [Child C’s] welfare was when she told [her] that she was hoping that she would get to spend more time with her father and less with her mother as her mother ‘is mean to her and hits her’”. Ms H confirmed under cross-examination that Child C had made that statement to her and that she had reported it to her superiors. She acknowledged that the statement was made on a day when Child C was in the husband’s care, and that she had not observed Child C to have any suspicious bruises or injuries.

135In my view, the evidence supports a conclusion that the wife has behaved in a violent manner towards Child A and Child C. I reject both her assertions that the children did not say what they are reported to have said to Ms X, Dr M and Ms H, and her argument that if they did make those statements, they lied, having been influenced by the husband to do so.

136I note further that the wife obtained a Violence Restraining Order against the husband, alleging that he had engaged in family violence. Notwithstanding the husband’s denial of the allegations made against him and his explanation of the circumstances in which the interim VRO obtained on an ex parte basis became final, the wife could not be heard to complain about a conclusion that the statutory presumption of equal shared parental responsibility does not apply.

137I further note that the husband told the family consultant on 13 November 2017 that there had been a “physical incident” between the parties in 2015. He told Dr M that during an incident in August 2014 the wife “dug her nails into [him] and scratched [him]” in the presence of at least one of the children.

138In any event, for reasons which follow I am satisfied that even had the presumption applied it is rebutted on the evidence, which establishes that it is not in the best interests of the children for the parties to have equal shared parental responsibility. Quite apart from other factors to which I will refer in allocating parental responsibility, it is abundantly clear (and not seriously disputed by either party) that the parties are incapable of communicating in the manner required to meet their obligations to consult with each other if an order for equal shared parental responsibility was to be made, let alone make a joint decision in the children’s best interests. While it is still appropriate that they consult, an order which did not provide for a decision-making process in the absence of agreement would simply invite failure.

The primary considerations

139It is clear that all three children have a meaningful relationship with the husband, and that it is in their best interests for that relationship to be maintained. It is also clear that the children’s relationships with the wife, while complex and in many respects troubled, remain important to them.

140The evidence raises significant concerns which speak to the need to protect the children from physical or psychological harm.

141As already noted, Child A raised serious allegations that he had been sexually assaulted at his previous school. The mother refused to consent to the husband’s proposal to remove Child A from that school, and was observed by the family consultant to be potentially “minimising Child A’s emotional conflict in saying he ‘just wants to get over it’”. Her opposition to removing Child A from the school at which he was assaulted, when the perpetrators of that assault had not themselves been removed, and against the background of Child A’s fragile mental health is, to put it as neutrally as possible, impossible to understand.

142It is unnecessary to repeat the findings made above in relation to the risk of physical harm to the children, most particularly Child A and Child C, from direct actions by the wife. No such risk is identified in the care of the husband.

143The husband has also raised serious issues regarding the living conditions at the mother’s home. His evidence and that of his brother, which I accept, supports a conclusion that the living conditions at the wife’s home after separation, and before she moved in with her mother, were at times squalid. That evidence and conclusion are reinforced by disclosures made by the children.

144I note, however, that in response to concerns of that nature raised by the husband initially in October 2013, the Department reported five contacts on the matter and further reported in August 2014 that its officers had visited the wife’s property twice, and held no concerns for the care of the children in the wife’s care. While the property was not in the best condition, that was not regarded as a child protection issue.

145The evidence also supports a conclusion that the living conditions at the wife’s present home, while not as bad, are still problematic. Dr M was in no doubt, having reviewed the evidence and herself visited the mother’s home, that the wife would benefit from therapy to address a hoarding condition.

146The uncontested evidence from the children’s schools referenced dirty, ill-fitting and inappropriate clothing, and inadequate provision of food for the school day. Observations were also made about Child A’s personal hygiene.

147Self-evidently those various concerns, while real, must be viewed against the background of the husband having proposed until recently that the children live in a week-about arrangement with both parents. It must be remembered that the concerns raised are not new, and pre-date the change in the husband’s proposals.

148It is frankly difficult to understand the basis upon which the husband contended that, notwithstanding his expressed concerns, a regular term time arrangement whereby the children would be in the sole care of the wife for a full week at a stretch would be in their best interests.

149The husband said the following in his trial affidavit of 6 April 2018:

“I have found it extremely difficult to decide on whether I should ask the court that the children live with me mainly or whether they should remain in the current shared care arrangement. My view keeps changing. Having continuously asked myself the question ‘what is best for the kids’ I have concluded that the best thing for the kids is that [the wife] and I have shared care, on a week about basis”.

150In his most recent updating affidavit, the husband said:

“Since deposing [the earlier affidavit], I have changed my view on the appropriate care arrangements for the Children. This change is based on the children’s behaviour when in my care and what the Children have disclosed to me about how [the wife] has been treating them. Based on my experience with [the wife] and those observations of my Children, I fear that [the wife’s] treatment of the Children has significantly worsened to the point that it is not in their interests to be in her care for more than 2 days a fortnight.”

151The husband goes on to refer to disclosures made to him by Child A “at the beginning of August 2018”. The first tranche of the trial took place on 1, 2 and 14 August 2018. That said, the husband said further that from August 2018 onwards he noticed a drastic decline in Child A’s mental health, and some repetition of the behaviour he had exhibited when suffering from suicidal ideations in 2016.

152When cross-examined by the ICL, the husband said the following:

[MR M]: At paragraph 15 of your affidavit filed on the 29 of May, you make mention or you say ‘my view keeps changing’, and that’s a view I think that you expressed initially in your trial affidavit as well.

[HUSBAND]: Yeah I have.

[MR M]: What confidence could this court have that your view’s not going to change again once you’ve got all this on your plate if the children are living with you?

[HUSBAND]: Uh look, my view has only waxed and waned in respect to the children having more time with [the wife]. It’s always been of the opinion that I should have them, but I’ve always felt guilty that I was denying the children and [the wife] time and trying to keep it fair and I had to go through that process at the end of the day. And I feel guilty that I, you know, I didn’t- wasn’t more, you know, renounced at the start but I had to go through the process where I felt that I was trying to be fair to [the wife], and I didn’t feel that if I asked for that- I felt like I was taking hope away from [the wife] as well, and the kids. So, I don’t know; I just, I want them- what I’m asking for, 12 and two, is best for me and the children. I had to go through that process, I never was actually wanting to give more back per-se.

[MR M]: If I understand your position though, you’ve changed your position because you’re concerned about the risk in the mother’s care, is that correct?

[HUSBAND]: Oh yeah, it’s escalated. Yes.

[MR M]: Alright, and you say I think at paragraph 16, ‘I fear that [the wife’s] treatment of the children significantly worsened to the point that it is not in their interest to be in her care more than 2 days a fortnight’?

[HUSBAND]: Yes, that is correct, yeah.

[MR M]: Well, [Mr Pond], isn’t it the case that if those risks are there, they could- those risks, the children are exposed to those risks even on those two days?

[HUSBAND]: Yeah they are, uh-

[MR M]: -so, I’m trying to make sense of what you’re proposing there?

[HUSBAND]: I-I don’t know, I- it’s hard for me to take the choice away from the children and [the wife] that I say 14 and nothing. I mean, that’s a huge thing to ask. I mean, okay in an ideal world I might ask for that but it’s hard to take that choice away from the children and the hope away from [the wife], I find it hard to do. If the court did, said that was the case, I’d be happy- but I don’t want to be the one to make that play. I mean, I don’t know. I’m just trying to… I don’t know.

153I am satisfied that the husband has genuinely struggled with the decision to pursue the relief he now seeks. His previous reluctance to do so, notwithstanding the history of his various concerns, is consistent with Dr M’s observations as to his personality and aversion to conflict. While he must bear some of the responsibility for the fact that the issues affecting the children have not been more assertively addressed at an earlier time, I do not consider that his inaction or the nature of his earlier proposals suggest that his expressed concerns were at any stage other than genuine.

154I conclude that Child A and Child C would be at ongoing risk of physical harm in the care of the wife, and that all three children would be at ongoing risk of psychological and emotional harm in her care. I record that my conclusion is consistent with the firm opinion expressed by Dr M.

155I conclude that the children would not be at risk of physical harm in the care of the husband, nor would they be at risk of psychological and emotional harm, provided he takes the appropriate steps to secure for them the therapeutic support that they need. I find further that he can be relied upon to do so.

The additional considerations

156The children have expressed views, and the ICL appropriately ensured that those views were before the Court.

157On 23 November 2017, Child A told the ICL that he considered that the present arrangement was “going fine”, that he was happy, and that he could not complain. He did not articulate any changes he would like made to the then current arrangement, and indeed did not see any reason to change it. When he spoke further to the ICL on 13 July 2018, Child A indicated that he would “go with the flow” and did not want to make a decision about the outcome. He did not have a particular view about what arrangement would work best for him, and expressed no particular preference for either leaving the current arrangements as they are or changing them to week-about.

158On 23 November 2017, Child B described the existing arrangement and expressed the view that it was a “good system because it was convenient”; she said that she did not want any changes to the current arrangement and that she did not feel anything could be changed to improve it. When asked on 13 July 2018 whether she would like to change to a week-about arrangement, she said that if it had to be that way she could deal with it, but it would not be her preferred arrangement. She expressed concern about not being used to a week about arrangement, that she might not like it, and that it would mean that there was too much time away from each parent in a block.

159Child C, who is younger than her siblings, described the current arrangement on 23 November 2017 as “one week with Mum and one with Dad”. She spoke positively about both, while saying that she did not receive as much physical affection from the wife as she would like. She did not identify particular concerns in either home, although she reported an awareness of the parents disliked for each other, and that they used to have, in her words, “lots of fights”.

160On 13 July 2018, she told the ICL that she would like an arrangement where she spend a week with both parents, and that she would be okay if the arrangement changed to week-about or if it stayed as it is currently.

161As already noted, the children have expressed different views both to teachers and to Dr M. Child A and Child C both told Dr M that they want to live with the husband and spend little time with the wife. Indeed, the wife appears to accept that Child A in particular would want to live with the husband, while attributing that to the attraction of being permitted to play electronic games at the husband’s home. Child B expressed a preference for an equal time arrangement.

162Given the children’s ages and levels of maturity, and the various other complex issues in this family, their views must be taken seriously and accorded some weight, but cannot be in any sense determinative of what orders should be made in their best interests.

163Dr M reported that the children have a good relationship with their parents and significant others. During the observation visit between the husband and the children, there were “open displays of affection, laughter, joking and great interaction”. The father was observed to have a natural manner of interacting equally with the children and to be “relaxed and calm”. During the observation visit between the wife and the children, Child B was noted to have the closest relationship with her mother, but after “warming up” all three children “interacted in play and laughed and appeared to have a good time.”

164That said, the fears expressed by Child A and Child C, and the anxiety exhibited by Child B about some of the wife’s behaviour towards them, clearly indicate that there are ongoing issues in each child’s relationship with the wife.

165On the husband’s case, the children “respect and fear” the maternal grandmother, but she assists in moderating the wife’s parenting style. He says further that the children have a meaningful relationship with Ms P, and happy and appropriately developing relationships with Child D and Child E. There are some difficulties in the relationship between Child B and Child F as already noted. The evidence does not suggest that those difficulties are incapable of being managed, or that the relationship will not appropriately develop over time. The wife agrees that the children have a good relationship with her mother, does not dispute that they have a happy relationship with Child D and Child E, and is reluctant to acknowledge any positive aspect of the relationship they have with Ms P. She holds strong negative views about the relationship between Child B and Child F, and blames Child F exclusively for the difficulties in that relationship.

166Overall, the evidence supports a conclusion that the father’s household, while predictably somewhat chaotic when all six children are in residence, is fundamentally happy and perceived by the children to be so. That is not to suggest that there have not been difficulties in some of the sibling and step sibling relationships, nor that there will not be such difficulties in the future; importantly, however, both the husband and Ms P show an awareness of those issues, and a willingness to seek assistance in addressing them.

167Both parties have taken the opportunity to spend time and communicate with the children. There have, however, been considerable difficulties in relation to the engagement of the mother in particular in decision-making regarding the children. As the ICL points out, she has not availed herself of the opportunity to engage in family therapy, nor for significant periods met her obligations to enable a SEW to properly engage with the proceedings and provide the Court with expert evidence. She has failed to respond to ongoing attempts to send the matter to dispute resolution, and has self-evidently failed to take opportunities to participate in decision-making by not actively engaging in these proceedings until very late in the piece. I reject her suggestion that she was excluded by the Court or by the husband from therapeutic processes for Child A. She has been consistently critical of almost all the professionals involved with the children, sceptical of both their motives and their professionalism, and prone to attribute any disagreement with her views to influence or manipulation by the husband.

168The wife’s failure to make closing submissions, despite the efforts made by the Court to facilitate and encourage that, is simply the most recent example of a long-running refusal to fully engage in the decision-making process.

169Both parties maintain the children when they are in their care. On the husband’s evidence, the wife is significantly in arrears in her child‑support obligations. While there are disputes between the parties in that regard, they do not influence the determination required to be made.

170The likely effect of any changes in the children’s circumstances is a matter appropriately to be considered, particularly as the wife’s changed position would, if adopted, effectively see a continuation of what are long standing arrangements.

171In short, those long standing arrangements are not working to the benefit of the children. The observations already made earlier in these reasons do not require repetition. In my view, a change in the children’s circumstances such that they live primarily with the husband is very clearly in their best interests. I acknowledge that it is likely that the children, and Child B in particular, may have some initial struggles in adapting to a changed routine and to spending less time with the wife; that said, the change foreshadowed is not as significant in that sense as would be the case had the children been in the wife’s primary care to date, and spending a limited time with the husband. They are already accustomed to spending substantial and significant time in the husband’s home.

172There are no relevant practical difficulties or expenses associated with the children spending time and communicating with each parent, unless it is determined that the wife’s time with the children should be professionally supervised. That matter is discussed further below.

173The evidence supports a conclusion that the husband has an appropriate capacity to provide for the needs of the children, including their emotional and intellectual needs. The children are physically safe in his home. While he has had his own mental health issues, he has addressed them appropriately and continues to do so. It is at his initiative that Child A changed schools, and is receiving ongoing therapy. He has also previously facilitated therapy for Child B. He has the support of Ms P, who is a social worker studying towards a degree in nursing, and together they have demonstrated a willingness and ability to seek appropriate therapeutic support for Child D and Child E, and for Child F.

174The evidence does not support a positive conclusion as to the wife’s capacity to provide for the needs of the children, in particular their emotional and intellectual needs. As already outlined, she has been resistant to steps which were objectively necessary to address the serious issues faced by Child A. She is sceptical as to the need for, and utility of, any form of therapeutic intervention for the children. She is dismissive of any suggestion that she requires assistance of that nature for herself. In short, the evidence does not support her views.

175I accept the evidence of Dr M when she said the wife would benefit from therapy to address both her hoarding condition, and anger management. I also accept her evidence that the wife would benefit from therapy, and that the children would benefit from her having it. I further note her evidence that it would be unlikely that the wife would perceive a need for, or likely benefit from, therapy for herself and that accordingly if the hoped-for benefit is to be achieved therapy would need to be mandated by court order.

176Dr M’s views in relation to that issue, which I accept, are best summarised in the following exchange during her examination by the ICL:

[ICL]:Is her meaningful engagement in therapy central to her ability to safely parent the children?

[DR M]: Her therapy – her engagement in therapy is crucial to be able to provide for the children psychologically and emotionally and physically.

[ICL]:If [Ms Dempsey] does not engage in meaningful therapy, is [Ms Dempsey] in a position to meet the children’s physical, emotional and psychological needs?

[DR M]:No.

177Dr M was firm in her view that the children would benefit from continued engagement in therapy, whether or not the wife engaged in individual therapy, and whether or not the parties engaged in family therapy. She saw potential benefit in the parties engaging in family therapy, but would not recommend the involvement of the children in that therapy in the initial stages, suggesting that should be left to the discretion of the relevant therapist.

178The same observations apply to a consideration of the attitude of each of the parties to the children and to the responsibilities of parenthood. Proper attendance to the needs of the children in terms of their mental and emotional health is an essential element of the responsibilities of parenthood. While the wife loves the children, and does her best in her own way and within her own limitations, those limitations cannot be ignored.

179There is no need for me to repeat observations made earlier in relation to the question of family violence. It is clearly preferable to make the order least likely to lead to the institution of further proceedings in relation to the children. The parties have been separated since November 2012 and these proceedings have been on foot since August 2014.

Conclusion

180For the reasons already articulated, I readily conclude that it is in the best interests of the children to live primarily with the husband, and for him to have sole parental responsibility for them. I accept the submission of the ICL that it is appropriate for the husband to consult with the wife about decisions to be made on long term major issues, and to consider her views before making what will be his decision.

181The more difficult issue is a consideration of the time the children should spend with the wife.

182For all the reasons outlined above, I conclude that it is in the best interests of the children to spend less time with the wife than they do at present. I reach that conclusion notwithstanding the fact that the current arrangement has been in place for a considerable time, and notwithstanding the observations already made about the varying proposals of each of the parties over the recent course of the proceedings. I accept the submissions of the ICL to the effect that the children are at risk of harm in the care of the wife, and that a reduction in their time with her will likely ameliorate that risk, at least in part by reducing the pressure of day-to-day parental responsibility on her.

183I conclude further that the proposal that the children spend regular time with the wife each Sunday, without spending overnight time with her, is in their best interests. The husband proposed that the children spend each Sunday from 9.00 am to 6.00 pm with the wife; while that is a somewhat longer period than suggested by the ICL, I prefer the proposal of the husband, recognising also that it may be more convenient for him.

184I reject the husband’s submission that the proposal of the ICL for the children spend regular time after school with the wife would be unduly disruptive, or increase the potential for conflict between the parties. During school term, only one additional handover will be required each week, and the potential for conflict (and for that matter any inconvenience) is, in my view, outweighed by the desirability of the children seeing the wife more frequently.

185That said, I accept the submission of the husband that the frequency of telephone communication proposed by the ICL would be both disruptive to the husband’s household, and potentially contrary to the children’s best interests by exposing them to further questioning, and less settled time away from the wife. Given that the children will see the wife each Wednesday and Sunday, I consider it appropriate to simply order that the husband facilitate the children telephoning the wife whenever they wish to do so. I accept the submission of the husband that he has demonstrated his desire and willingness to promote the children’s relationship with the wife, and to be sensitive to, and accommodating of, their wishes.

186I have considered the recommendation of Dr M that the wife’s time with the children be supervised, at least initially. I accept the submissions of the ICL and the husband to the effect that supervision should not be ordered. I accept the submissions of the ICL as to supervision not being required to mitigate risk, that the wife might not engage with any supervision, and that it would in any event not be sustainable in the medium to long-term.

187I have considered whether family therapy should be ordered. I conclude that it should not. There is nothing in the history of the matter, in the evidence of the wife, or in the accepted evidence of Dr M to suggest that the wife would genuinely engage with any ordered family therapy. In those circumstances, I consider it inappropriate to put in place orders which would involve the husband and the children in seeking out and engaging with family therapy, at some personal and potentially emotional cost, for the process to then be almost inevitably frustrated.

188I have considered whether I should make orders requiring the wife to engage in her own therapy. Again, her presentation and evidence, and the evidence of Dr M, lead me to conclude that while she may or may not comply with any such order if made, she would not recognise any need for therapy nor genuinely engage in it. While it is to be hoped that the wife’s insight in that regard might develop in time, I see no utility in attempting to force the issue by court order.

189I accept the assurance of the husband that he will ensure that the children receive appropriate therapeutic support as needed. While I perceive no particular need to make an order in that regard, the husband has indicated his consent to the order proposed by the ICL and I propose to make it.

190Otherwise, the various specific issues orders proposed by the ICL are accepted by the husband as being in the best interests of the children. I agree with that assessment.

191Subject to any submissions as to form, I propose to make the following orders:

1.All previous parenting orders with respect to the children, [Child A], [Child B], and [Child C] (“the children”) be and are hereby discharged.

2.The children live with the husband.

3.The children spend time with the wife as follows;

(a)from 9.00 am until 6.00 pm each Sunday;

(b)from the conclusion of school or 3.30 pm each Wednesday until 7.00 pm; and

(c)at other times as agreed between the husband and wife.

4.Unless otherwise agreed between the parties, handover at the commencement and conclusion of the wife’s time is to occur at [a local restaurant] except on school days where handover at commencement will be at the children’s respective schools.

5.The husband facilitate the children or any of them communicating by telephone with the wife at any reasonable time in accordance with their wishes.

6.The husband have sole parental responsibility for the children in relation to all major long-term issues including;

(a)the children’s education (both current and future);

(b)the children’s religious and cultural upbringing; and

(c)the children’s health.

On the conditions that (other than in the case of any decision required urgently in a medical emergency):

(a)the husband will contact the wife in writing and provide his views about any such issue;

(b)the husband will consider any views expressed by the wife with regard to any such issue;

(c)the husband and wife will make a genuine effort to come to a joint decision about any such issue; and

(d)if no agreement is reached between the parties, then within 14 days the husband shall make the final decision and advise the wife in writing of the decisions about any such issue.

7.The husband is to do all acts and things necessary to facilitate the children’s attendance for therapeutic support as recommended by the single expert witness in her report filed 26 June 2019.

8.The husband is to advise the wife in writing of any major health issue experienced by the children, including the children’s progress with their therapeutic counsellor.

9.The husband is to do all acts and things necessary to authorise the children’s schools to provide the wife with ongoing copes of newsletters and the children’s school reports.

10.Subject to the requirements of the Department of Foreign Affairs and Trade the requirement for the permission of the wife for the issue of a passport for any child of the proceedings be dispensed with.

11.The husband be at liberty to travel overseas with the children for a holiday provided;

(a)the wife has been provided with no less than 30-days’ notice of such holiday;

(b)the husband has provided to the wife an itinerary of the proposed travel together with evidence of return air tickets; and

(c)the husband has made a proposal for make-up time for the wife’s time with the children to be exercised either before or after the scheduled holiday.

12.The husband and wife are each restrained by injunction and injunction is hereby issued restraining each of them from;

(a)denigrating each other or members of their respective families to the children or knowingly permitting a third person to do so; and

(b)discussing with the children, or in their presence, these proceedings, or showing the children copies of documents filed in or resulting from the proceedings.

13.The wife and husband shall keep each other informed of;

(a)a current email address to be used to communicate issues in respect of the children; and

(b)a current contact telephone number to enable the children to have telephone communication with the wife as set out in paragraph 5 of these orders.

14.The wife and husband each have liberty to provide a copy of these orders to;

(a)the children’s schools;

(b)the children’s therapeutic counsellors;

(c)any medical practitioner treating the children; and

(d)any treating medical practitioner and/or therapeutic counsellor.

15.The Independent Children’s Lawyer be and is hereby discharged.

16.All outstanding applications and responses to the extent they seek parenting orders otherwise be dismissed.

17.All documents produced by named persons pursuant to subpoena be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from this order.

18.In relation to material tendered as an exhibit into evidence in these proceedings:

(a)all parties must contact the Chambers of Justice O’Brien to arrange the collection of their exhibits; and

(b)in default of compliance with subparagraph (a), all material tendered as an exhibit, save and except for material produced pursuant to subpoena, will be destroyed by the court without notice to the parties.

19.In the event of an appeal being lodged prior to the expiration period of 42 days, paragraphs 17 and 18 above do not apply

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

KM
Associate

3 OCTOBER 2019