DEVLIN and DEVLIN - [2020] FCWA 232

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: DEVLIN and DEVLIN [2020] FCWA 232
CORAM: DUNCANSON J
HEARD: 29, 30 SEPTEMBER 2020
DELIVERED : 30 DECEMBER 2020
FILE NO/S: PTW 4860 of 2016
BETWEEN: MS DEVLIN
Applicant
AND
MR DEVLIN
Respondent

Catchwords:

CHILDREN - Where it is in the best interests of the children that the mother have sole parental responsibility for making decisions about health and education - Where the parties otherwise have shared parental responsibility - Where the children live with the mother and spend increasing time with the father - Parenting orders - Turns on its own facts

Legislation:

Family Law Act 1975 (Cth) s 60B, s 60CC, s 61DA, s 68Q
Restraining Orders Act 1997 (WA)

Category: Reportable

Representation:

Counsel:

Applicant	:	Mr B Frost
Respondent	:	Self-Represented Litigant

Solicitors:

Applicant	:	Frost & Associates Lawyers
Respondent	:	Self-Represented Litigant

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

1[Ms Devlin], the mother and [Mr Devlin], the father are the parents of [Child A] and [Child B] who are aged 10 and five years respectively. The parties are unable to agree about various parenting issues concerning the children.

BACKGROUND AND SHORT HISTORY

2The mother is 42 years of age. She is a [health professional]. The father is 44 years of age. He is an [accountant].
3The parties commenced cohabitation in 2001. They married [in] 2004.
4Child A was born [in] 2010. Child B was born [in] 2015.
5The parties separated in July 2016. They subsequently reconciled, but separated finally in February 2018.
6At separation the father left the family home and moved to [Suburb A]. The mother continued to live in the family home at [Suburb B] with the children.
7On 23 May 2018 an Interim Family Violence Restraining Order was made upon the application of the mother. The order became final.
8The mother commenced proceedings for property settlement in July 2018 and amended her application to seek parenting orders in August 2018.
9In August 2018 the children commenced spending time with the father for about four hours during the day at a weekend. They had only spent time with him on about two occasions in several months prior to that.
10On 17 September 2018 the father was reported to have breached the FVRO. He was found guilty of that breach [in mid] 2019.
11On 19 October 2018 the parties attended a Case Assessment Conference.
12The Family Consultant noted that both parents had markedly different accounts of alleged events and/or incidents which were said to have occurred. The Family Consultant reported that it was likely the children had been exposed to both parents discussing adult matters in their presence and possibly involving them in discussions relevant to time with the other parent.
13The Family Consultant discussed the children's time with the father. At that time the mother's position was that once the father had secured stable accommodation in the Perth metropolitan area she would be agreeable to the children's time with him increasing. The father informed the Family Consultant he was intending to move to Perth once financial settlement had occurred.
14On 31 October 2018 an order was made that the children be independently represented in the proceedings.
15In December 2018 the parties agreed the children would spend overnight with the father from Friday to Saturday one weekend and on a Sunday in the alternate weekend with the father.
16On 6 February 2019 interim orders were made by consent providing that the children spend time with the father from Friday to Saturday in one week and from Saturday to Sunday in the alternate week together with various other parenting orders. The orders were stated to be subject to s 68Q of the Family Law Act 1975 (Cth) ("the Act") in relation to the family violence order.
17In April 2019 the parties finalised financial matters. On 2 June 2019 the parties were divorced.
18On 13 November 2019 orders were made providing for the children to spend time with the father at Christmas.
19In January 2020 the parties attended a Child Dispute Conference. The Family Consultant reported that the children continued to spend time with the father pursuant to the February 2019 orders and that the parties communicated by email by reason of the current Family Violence Order.
20The mother proposed that the children spend additional time with the father if he relocated to within 15 kilometres of her home. The father acknowledged that weekly time would only be possible if he relocated to the Perth metropolitan area.
21The Family Consultant reported that the co-parenting relationship, or lack of it, was of significant concern. In her assessment there was no risk to the children, other than the risk of emotional harm should the parental conflict and disharmony continue. The Family Consultant reported the complicating factor being the father not having a base in the Perth metropolitan area.
22The ICL ceased acting on 7 April 2020.
23The FVRO expired on 24 May 2020.
24The mother filed an application to adjourn the trial listed for 29 September 2020 pending the father's relocation to Perth. The application was listed for hearing on 21 September 2020, at which time the father informed the Court that he had obtained rental accommodation in Suburb B very close to the family home. The trial remained listed.
25The father took occupancy of the rental property on 5 October 2020.
26As at the date of trial the children continued to live with the mother and spend time with the father pursuant to the February 2019 orders.

THE AGREED ORDERS

27The parties agreed that the children will live with the mother. They agreed a change to the commencement time of the spend time arrangements. The parties also agreed spend time arrangements at Christmas in each year.

THE ISSUES IN DISPUTE

28Most of the parenting orders sought by each party were not agreed by the other.
29The orders sought by the mother are contained in a further amended minute of final orders sought filed 8 July 2020. The orders sought by the father are contained in an amended minute of final orders filed 7 September 2020. Although well meaning, the minute of orders filed by the father is lengthy and prolix. I will endeavour to simplify the orders to ensure clarity and certainty.
30Exhibit 1 is a minute of final orders disagreed. This document contains a comparison of the parenting orders sought by each of the parties. I have not reproduced the minute herein as it too is lengthy. It mostly represents the parties' positions at trial but with some slight variations in the spend time arrangements.
31The most significant parenting issues are that of parental responsibility and the arrangements for the children to spend time with the father.
32The children live with the mother in Suburb B. At trial, the father lived in Suburb A and the children spent time with him one night each weekend.
33At trial, the father was in the process of moving to Suburb B, to live in rental accommodation close to the mother's home. As a consequence of the change in the father's accommodation, both parties proposed that the spend time arrangements be changed and the children's time with the father increase.
34At trial the mother proposed that with immediate effect the children spend two nights in one weekend and one night in the intervening week with the father. She proposed that on 1 January 2021 the children's time in the intervening week increase to two nights. The mother's proposal was ultimately that the children spend two nights each weekend and two nights during the week with the father, a total of four nights each fortnight.
35Specifically the mother proposed that the children immediately spend time with the father from Friday to Sunday in Week 1 and from Thursday to Friday, thereafter extended from Wednesday to Friday in Week 2.
36The father took issue with the mother's proposal because in her further amended minute she had proposed that the children spend two nights each week with him and she appeared to have stepped back from that position. The mother explained she proposed a gradual increase because the children have never spent more than three consecutive nights with the father.
37The father proposed that the children immediately commence spending two nights each alternate weekend and two nights in the intervening week with him. The father proposed that after eight weeks, the children spend three nights each alternate weekend and three nights in the intervening week with him, ultimately a total of six nights each fortnight.
38Specifically the father proposed that the children immediately spend time with him from Friday to Sunday in Week 1 and Wednesday to Friday in Week 2. After eight weeks, they spend time with him from Thursday to Sunday in Week 1 and Tuesday to Friday in week 2.
39Bearing in mind the provisions of Division 12A of the Act, at the start of the trial I endeavoured to summarise the primary issues for determination. They are as follows:
•Parental responsibility and whether the mother should have sole parental responsibility for decisions about education, health and extracurricular activities as sought by her, or whether the parties should have equal shared parental responsibility as sought by the father.
•When the handover does not take place at school, whether it should occur at the home of each of the parties or at [another location].
•The spend time arrangements during the school terms. The dispute between the parties is as set out above.
•The spend time arrangements in the school holidays. In relation to school holidays, on reflection the mother thought that an arrangement whereby the usual time be suspended and the children spend a block period of up to five nights with the father, was appropriate. The father sought to have the existing arrangements continue during the school holidays, but be extended such that the children have block periods of time with him in the school holidays at the end of Terms 2 and 4. However, the father was receptive to some suggestions about holiday periods and prepared to consider some other arrangements.
•The arrangements to be made, if any, on the children's birthdays. The father sought to spend time with the children around the time of their birthdays every even year and the mother made no proposals in this respect.
•Travel interstate or overseas and whether it was sufficient to give notice of travel or whether the consent of the other party was required.
•Whether the mother holds both children's passports or each party holds the passport of one child.
•Orders sought by the father restraining the maternal grandmother from being in the presence of the children unless supervised and preventing the children from travelling in a car driven by a person over the age of 80 years which are opposed by the mother.
•Appropriate orders regarding enrolment in extracurricular activities and invitations to attend birthday parties or other events occurring in the children's time with each party.
•The form of communication between the parties, with the mother proposing to communicate by "Our Family Wizard" and the father proposing to communicate by email.
•Both parties sought orders for dispute resolution however the wording of their orders differed.

THE PARTIES AND THEIR EVIDENCE

The mother

40The mother was represented by counsel. I consider she gave truthful evidence and her recollection of events was reliable. The mother was personally cross-examined by the father. The cross‑examination ban previously in force had expired.
41When the mother was unable to answer a question she said so and when she was referred to documents she required the production of the document before answering a question about it. I accept the mother's evidence that there was family violence and prefer her evidence to that of the father in this respect.
42For the most part the mother maintained her composure. She became distressed when describing the impact of these proceedings and the conflict between her and the father upon the children.

The father

43The father was a self-represented litigant. He is intelligent and articulate. He cross-examined the mother referring to himself in the third person, which at times she found confusing. The father gave mostly truthful evidence. In relation to the incident on 7 March 2020, I found the father to be evasive and his evidence was less reliable than that of the mother. In particular I accept the mother's evidence that the father drove past the handover venue being [Location A] and the children saw him. The father denied doing so. I do not accept his denial.
44The father was respectful of the court's direction and open to suggested parenting orders.

THE LAW

45These proceedings are determined under Part VII of the Act.
46In reaching my decision I will be guided by the objects of that Part and the principles underlying those objects.
47Section 60B sets out the objects and the principles underlying them. The objects are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

48In deciding whether to make a particular parenting order, s 60CA directs me to regard the best interests of the child as the paramount consideration. Section 60CC sets out how I determine what is in a child's best interests. I must consider the primary considerations and the additional considerations.

Parental responsibility

49Pursuant to s 61DA of the Act, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the child's best interests for the parents to have equal shared parental responsibility for the child.
50Equal shared parental responsibility imposes an obligation upon them to consult as to major long-term issues regarding the child and to make a genuine effort to come to a joint decision about such an issue.
51The presumption that it is in the child's best interests for the parents to have equal shared parental responsibility for the child does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse or family violence.
52The presumption may be rebutted by evidence which satisfies the Court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility.
53The mother seeks an order that the parties have equal shared parental responsibility for the children except for matters of education, health and extracurricular activities (although the latter is not a long term issue) in respect of which she seeks sole responsibility. The father seeks an order that the parties have equal shared responsibility for the children.

PRIMARY CONSIDERATIONS

the benefit to the child of having a meaningful relationship with both of the child's parents

54It is to the benefit of Child A and Child B to have a meaningful relationship with both of their parents. Neither party suggested otherwise.

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

55The mother deposed that around the time of the parties' final separation the father verbally abused her in front of the children and told Child A words to the effect that he was leaving and would not see him again until he was 18 years old. The mother deposed that Child A was extremely upset. The father deposed that the mother's claim that he had abused her in front of the children is utterly false.
56The father deposed that Child A alleged the maternal grandmother punched him in the back, grabbed him by the upper arm and pulled him into the house. The mother deposed that on about 20 June 2019 Child A rushed past the maternal grandmother who lost her balance and reached out for Child A's t-shirt to prevent her fall. The mother deposed the grandmother did not punch Child A in the back and she recalled that there were no visible red marks or bruises to Child A.
57The mother deposed that the father attempts to undermine the relationship between her parents and the children and that they pose no risk to the children. In closing submissions the father conceded the children enjoy having a relationship with their grandparents on both sides and said save for some concerns about the maternal grandmother's conduct he is supportive of the relationship, when it is healthy.
58The maternal grandmother was not a witness in the proceedings. I did not have an opportunity to assess her. The father's position is that the maternal grandmother involved herself in the parties' dispute. The maternal grandparents are supportive of the mother and were not supportive of her reconciliation with the father. The mother said both children are aware the father "hates" the maternal grandmother.
59Upon the evidence it has not been established to me that the maternal grandmother poses a risk of harm to the children.
60The father consents to an order that the children live with the mother. The mother proposes that the children spend time with the father, including up to five nights during the school holidays. The father submits and I accept that the proposals suggest that neither party asserts that the children are at risk of harm in the care of the other.
61I consider that both parties are loving, protective and caring parents. I am satisfied that there is not a need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
62There may be a risk of emotional harm to the children by being exposed to the conflict between the parties and I refer to this below.

ADDITIONAL CONSIDERATIONS

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

63The father deposed that in both 2018 and 2019 Child A made remarks in favour of increased time with him. The father further deposed that he suggested Child A spend three nights a week with him and Child A agreed saying "That would be good".
64This is not inconsistent with the mother's evidence as she deposed that on occasions the children had told her they would like to spend more time with the father, however until the father moved closer to her home she could not see how this could happen.

65The mother is concerned that the father has discussed these proceedings with Child A. Her concern appears to be borne out by the father's evidence that he suggested to Child A that he spend three nights a week with him.
66In her oral evidence the mother said the children like to visit the father and they have fun with him.
67I accept that the children enjoy spending time with the father and they wish to spend more time with him. That is now possible as he has moved to a home close to the mother's home.

the nature of the relationship of the child with:

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

68The children have a close and loving relationship with both of their parents and with extended family members.

the extent to which each of the child's parents has taken, or failed to take, the opportunity:

(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;

the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child
69Both parties have made decisions about major long-term issues in relation to the children, spent time and communicated with them.
70After the parties separated the father saw the children on only two occasions in six months notwithstanding the mother's proposals for parenting arrangements. The mother deposed that on a third occasion the father drove past the children who were waiting for him outside of the home. Child A was extremely upset. The mother later learned the father decided not to collect the children as her parents' car was in the driveway although they were not in sight or at her home. The father deposed the children were not visible and he referred to an agreement between the parties that extended family would not be involved in handovers. The father deposed:
Given that her parent's vehicle is not an armoured tank, the only plausible conclusion is that the (sic) she sought to induce my perception that they were present.

71The father's position is that he would like the children to spend more time with him than the mother is prepared to agree to. Had the father moved closer to the mother's home sooner it is likely the children would have spent more time with him than they have done to date.
72The children have mostly been maintained by the mother since the parties separated. The father has not had paid employment since 2016. Currently the assessed child support is $55 per week for both children, which is deducted from the father's bank account at the mother's request.

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

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

73An order is to be made by consent that the children live with the mother. This continues the arrangement which has been in place since the parties separated. In that respect, the children's circumstances remain unchanged.
74The children's time with the father is limited to one overnight each week by reason of the distance of approximately 100 kilometres between the parties' homes. The father has secured rental accommodation very close to the mother's home. It has consistently been the mother's position that the children did not enjoy the lengthy travel and that they could spend greater time with the father if he moved closer to her home.
75The mother previously proposed that there should be an increase in the children's time with the father such that ultimately they spend five nights each fortnight with him. At trial her position was that the two nights each fortnight they currently spend with the father should increase immediately by one night to three nights a fortnight. She proposes once the children have become accustomed to that arrangement a further night can be introduced. The mother proposed a gradual increase in the children's time with the father as prior to trial they had not spent more than three consecutive nights with him.
76The father's proposal is that the children's time with him increase immediately to four nights each fortnight. He is concerned that the mother now proposes less time than before. The father said the extra time accords with Child A's views. The father's position is that it will have a beneficial effect upon the children to spend more time with him.
77The mother said at times upon Child A's return from spending time with the father he was oppositional and he wet the bed. I am unable to determine the cause of this behaviour although the mother attributes it to the father allowing the children to be aware of court and other matters.
78I accept that the children would like to spend more time with the father. Increased time with the father accords with the children's views. Neither party deposed to there being separation issues when the children leave a parent to spend time with the other. I find that an increase in the children's time with the father is a change to their circumstances which is likely to have a positive effect upon them.
79I am mindful of Child B's young age and that he is five years younger than Child A. I am also mindful that the children have spent limited time with the father since separation. Taking these matters into account I consider the increase in time should be introduced in stages to enable the children to adjust to the changes in their arrangements.

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

80There is now no practical difficulty or expense of the children spending time and communicating with their parents. The father's rental accommodation is a short distance from the mother's home. Child A is able to cycle between the homes. Both homes are close to the children's school. The father's move clearly facilitates the children spending time with him.
81The father acknowledged that orders providing for the children to spend more time with him would be made on the basis that he lives in close proximity to the mother. He acknowledged that the orders sought by him that the children spend several nights each fortnight with him would not be possible if he returned to Suburb A.

the capacity of:

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

to provide for the needs of the child, including emotional and intellectual needs
82The mother is capable of providing for the needs of the children, including their emotional and intellectual needs. She provides for them financially. The maternal grandparents assist her in caring for the children when she works.
83The mother has re-partnered, although her partner does not live with her. Child A saw some inappropriate video material inadvertently at the mother's home. The father said on a couple of occasions Child B has been "chugging on a beer". The mother said on one occasion Child B took a sip of alcohol while in her care. The mother properly conceded that the children ought not to be exposed to inappropriate video games and nor should they consume alcohol. It was appropriate for the father to raise these matters but I am satisfied they were isolated incidents.
84I am further satisfied that the mother is a responsible parent. Child A is a high achiever at school and both boys are doing well educationally.
85Child A had some behavioural difficulties in 2019 and both boys exhibited anger issues. The mother had obtained psychological help for Child A in 2018.
86The mother said recently Child A returned from a visit with the father crying and worried about the father and he wet the bed. Child A told the mother the father would not get any sleep because he had to prepare court documents. The mother attributed Child A's unsettled behaviour to the father involving him in the parties' dispute and exposing him to court details.
87The mother described the children as tired, cranky and disrespectful on their return from spending time with the father. She acknowledged the travel is no longer an issue but said late nights affect the children. It is to be hoped that after these proceedings are concluded that will not occur and that the children will settle into a predictable living arrangement with their parents and a routine with each.
88An order was made on 31 October 2018 that the mother cause Child A to attend a Supporting Children after Separation program ("SCAS program"). The mother explained they were waitlisted for the program and Child A received assistance from other practitioners during this time. Child A attended his first SCAS session this year. Child A was not interested and left the session early upon the advice of the counsellor. The mother said she is still offering the program to Child A and she will take him once he is open to it.
89The father asked the mother why Child B is yet to complete the program. The mother said that due to work and these proceedings she has not had a chance to take Child B but has discussed the possibility of Child B attending Child A's appointments in the future.
90The father was critical of the mother for not keeping him updated on the children's counselling or keeping him updated when she made bookings for the children. The mother said she did not deliberately stop the flow of information being passed to the father in relation to Child A's attendance at the SCAS program and was told by his treating counsellor that she would keep the father informed.
91The Family Consultant recommended consideration should be given for both children to attend the SCAS program. As a responsible parent I consider the mother can be relied on to arrange for both children to attend the program at an appropriate time. At present Child A is resistant to doing so. I also understand the father's concern and I shall therefore order that the mother use her best endeavours to cause the children to attend the program. The father should be kept informed of this and my orders will provide for this to happen.
92The father also has the capacity to provide for the children's needs. He places emphasis on their educational needs and his efforts in that respect have produced good results. The father described the many enjoyable activities which the children undertake in his care and his pride in their achievements.
93It is likely the reason the children wish to spend more time with the father is because they enjoy their time with him.
94It is to the father's credit that when Child A told him he was his favourite parent, he corrected Child A to say that he has a favourite mum and a favourite dad. However my assessment of the father is that he has not always shielded the children from his views of the mother and the maternal family. This has caused confusion for Child A in particular and is likely to have contributed to his difficult behaviour upon his return to the mother.
95The mother deposed to the father's failure to facilitate the children's attendance at extra-curricular activities, specifically Child A's attendance at [extracurricular sports]. The father said he has consistently facilitated Child A's attendance save for one instance. The father said Child A does not want to participate in [this extracurricular activity] and produced a handwritten letter from Child A to the mother expressing his wishes not to finish the season. This became Exhibit 2. The mother accepted Child A wrote the letter but was unsure why he wrote it, as it was her view that he is happy and enjoyed the season.

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

96Child A is 10 years of age and Child B is five years of age. The age gap between the children is five years.

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

(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right

97This consideration is not relevant.

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

98The children enjoy a loving and close relationship with both of their parents which would suggest that neither party has undermined the children's relationship with the other parent.
99The mother expressed concern that if Child A became difficult at home he would be able to cycle to the father's home. The father acknowledged it was important that should that occur the parties should ensure that Child A was returned to where he should be living or spending time pursuant to the orders. As responsible parents both should ensure that the orders are complied with and neither should encourage Child A to disobey the other parent.
100The parties do not communicate well. In the context of an email sent by the father to the mother which became Exhibit 16 the mother described the father's correspondence as condescending, unnecessary, disrespectful and rude. The correspondence concerned a birthday party invitation. The mother emailed the father [in] August 2019 as follows:
Hi [Mr Devlin]
[Child B] would like to go to his friend's birthday which is in my time, however finishes at 1.30pm on [a] Saturday [in] August. I may be about 20 minutes late to handover and you are welcome to have this extra time upon returning the boys the following day. Can you please confirm receipt of this email?

I have attached a photo of the invite.
Kind regards,
[Ms Devlin]

101The father replied as follows:
Hi [Ms Devlin],
It is presumed that you have accepted the invite without consultation. A reasonable person would only do that on the basis that the event could be entirely accommodated within the allocation of their time, without implication for the other Parent.
Having viewed the invite, I am unable to glean that the event finishes at 1:30 PM. Perhaps that is inside information, perhaps it is something else.
The Boy can attend between 11:30 AM and 1:00 (+/- 0:06) PM, facilitating sufficient and reasonable time for your compliance with prevailing Court Orders.
I will remind you [Ms Devlin] that you have attended handover substantially late on several occasions over the past few weeks. I'm trying to be a flexible partner, giving you some breathing space and to cover your arse here or there. Please don’t push the limits of an already difficult relationship.

Kind regards
[Mr Devlin]

102The mother finds communication with the father to be difficult although there have been times when communication has been effective. The father acknowledged that his communication has at time been "tongue in cheek".
103It is for this reason that the mother wants to communicate with the father using Our Family Wizard which she said restricts the amount of communication and cuts out unnecessary conversation or sarcasm. The father wants to communicate by email. The mother described communication at this time as very strained. She gets anxious opening emails which she said can be lengthy, convoluted and not necessarily direct.
104On 23 February 2020 the father emailed the mother proposing to commence handovers at Location A effective from 7 March 2020. He suggested the mother's route and his email contained a map. He wrote this to eliminate the possibility of "crossed paths" and he referred to the Restraining Orders Act1997 (WA).
105On 2 March 2020 the mother's solicitor wrote to the father in relation to various matters and with respect to handover he confirmed Location A was agreed, that handover be near the [entrance] as of 7 March 2020.
106The mother attended Location A [in] March 2020 at 11.30 am. The mother sent the father an email saying handover was at Location A and they were waiting near the entrance. She said the father drove past the handover location, but did not stop to collect the children. She said he drove past several times. He saw the children and the children saw him. They waved to him in the car.
107The mother waited there for 45 minutes, the father did not attend. She went to the previous handover venue, [Location B]. The father was not there. She waited a further 45 minutes and went home.
108The mother's solicitor contacted the father by telephone to confirm that the children were at the agreed handover. The father did not answer the call. When asked why, he said there was no precedent for him to have a telephone call with the mother's solicitor. He was of the view that something "untoward was going on" and he was not of the mind "to play games". The mother's solicitor sent a text message to the father. He said he did not read it until he returned to Suburb A.
109It was put to the father that the mother had attempted to facilitate handover as he proposed. The father said he was not prepared to accept correspondence from the mother's solicitor regarding the handover venue. He had requested a direct response from the mother. She did not respond and he said the default handover location was Location B. He waited there for 20 minutes.
110The father denied driving past Location A. I do not accept his denial. I prefer the evidence of the mother in this respect. I found the father's evidence with respect to the communication from the mother's solicitor to be evasive and unsatisfactory.
111That evening a family member of the mother was to have a birthday party. I understand from the mother's evidence that she had not intended the children attend the party. It appeared that the father's view was that was what the mother had intended. He said there was "foul play" to reunite the children with the maternal family.
112The father had the opportunity of collecting the children from a venue which he had been informed was agreed. He did not do so. In this respect I consider the father demonstrated a poor attitude to parenting and this incident does not reflect well on him.
113The father's subsequent correspondence with the mother was unacceptable. On 15 March 2020 he wrote to her regarding handover. His email contained mathematical calculations and I reproduce it below.
Hi [Ms Devlin],
[I am presently cognisant that your stipulated precursors for recommencing responses have eventuated (see attached email)].
You will recall that the impetus for relocation of handover was the matter of weather.
Can you please avail me of the contingency plan for extremes of weather, including the contemporary matter of precipitation?
In particular, I cite my encounter with rain during the most recent handover.
Such contingency plan must, as a matter of course, satisfy the 3 standard axioms (PEN);
1.Exclusivity: A n R = Ø.
2.Proximity: | a – r | » 10, a A, r R.
3.Neutrality: y A U R, |z - y| > 200 y U .

Where A and R are the sets of points that may be traversed by the Applicant and Respondent, respectively, and and are the sets of points proximate to the Applicant and Respondent private residences, respectively. All sets are open and members are vector valued, in units of meters.

A and R are of course the analogues to the red and blue ellipses pictured in the email below, with those in the right hand image satisfying all axioms. By way of example, the left hand image fails to satisfy axioms 1 and 2.
I have made my specification in => set notation <= as it is precise, uniquely constrained in interpretation and readily intelligible to the extended, albeit, unintended audience.
Kind Regards,
[Mr Devlin]
"Mathematics is the language in which God has written the universe" – Galile Galilei
(as per the original)

114The father acknowledged that this email was "tongue in cheek" and to avoid his statements being taken out of context. When asked if the email could be confusing to the mother he said the mother had advanced maths training and would understand. In my view the father's email was unhelpful and obstructive.
115There is a risk that correspondence of this nature could obstruct important decision making regarding the children and this incident has a bearing on my consideration of the allocation of parental responsibility.
116The father has paid limited child support for the children for some years. He intends to obtain employment and ought to make a meaningful contribution to the financial support of the children.

any family violence involving the child or a member of the child's family

117The mother deposed to family violence perpetrated by the father to her including verbally abusing her in the presence of the children, yelling, swearing, name calling, belittling and occasions when the father threw household items and smashed a plate or glassware. For the most part the father denied the mother's allegations. As to the mother's allegation to the Family Consultant that the father threw a glass bottle at her head, the father deposed:
297.At the CAC, I explained to the family consultant that I had once thrown a bottle at a wall, However, I was categorical that this was not aimed at the Applicant, nor was she proximate to any point on this projectile's trajectory. This explanation stands.

118The mother described an incident of family violence in February 2018 when after an argument with the father she sought refuge in the bathroom. She deposed the father smashed his fist through the bathroom door and smashed the lock to enter the bathroom.
119The father denied any family violence on this occasion. He deposed there was a brief verbal altercation lasting about 60 seconds in February 2018 prior to him leaving the home. He referred to the "En suite Incident" which he deposed occurred in September 2017. He deposed he heard screaming from the ensuite and he formed the impression the mother had fallen and injured herself as she was intoxicated. He forced the door open and found she was unharmed.
120The father deposed:
394.The Applicants allegation that I stood over, and verbally abused her is false, and it is perverse that she has recategorized this event, when I was acting genuinely in the interests of her preservation.

121I prefer the mother's evidence in respect of this incident. I found the father's account of events to be implausible.
122There is not currently any family violence involving the children or a member of their family.

if a family violence order applies, or has applied, to the child or a member of the child's family – any relevant inferences that can be drawn from the order, taking into account the following:

(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;

(v) any other relevant matter
123On 23 May 2018 an Interim Family Violence Restraining Order was made upon the application of the mother. The father did not oppose the order and it became final. The FVRO expired on 24 May 2020.
124On 17 September 2018 the father was reported to have breached the FVRO. He was found guilty of that breach [in mid] 2019. The father received a spent conviction.

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

125It is desirable to make final orders and conclude these proceedings. Finality would be of assistance to both parties and in the best interests of the children as it is likely to minimise conflict. Orders will also provide predictability and certainty in the children's arrangements.

any other fact or circumstance that the court thinks is relevant

126I understand the parties have not attended the Mums and Dads Forever program. They should both do so.

CONCLUSIONS

127Having considered all of the evidence in the context of the primary and additional considerations, I have come to the following conclusions.

Parental responsibility

128I shall make the order sought by the mother that the parties have shared parental responsibility for making decisions regarding long-term issues concerning the children, except for education and health (noting that extracurricular activities is not a long-term issue) in respect of which the mother shall have sole responsibility for making the ultimate decision after conferral with the father. I consider such an order to be in the best interests of the children for the reasons set out below.
129The scope of the conflict between the parties in these proceedings was wide. Not many issues were agreed despite many attempts to do so including most recently at a pre-trial conference.
130The parties do communicate although they have not been able to agree as to the method by which they will do so in the future. The father seeks to communicate by email. The mother proposes to communicate by means of Our Family Wizard.
131The difficulties in communication are by reason of the father's correspondence with the mother which has at times been lengthy, convoluted and high handed. To include a maths equation in email correspondence was most unhelpful. The father conceded that was inappropriate.
132The mother described her email correspondence with the father as "very strained". She said she gets very anxious opening emails, which can be lengthy, convoluted and not necessarily direct. The mother said she works full-time and she does not have time to read lengthy emails.
133The father's position was that once these proceedings are concluded and he did not have to correspond with the mother's legal representative, correspondence would improve.
134The order I shall make is intended to ensure that important decisions concerning the children's health and education are not delayed by unnecessary convoluted correspondence from the father. I also take into account the impact of his correspondence on the mother.
135An order providing that the mother have sole responsibility for making decisions about the children's health and education does not mean the father's views on these matters are of less importance than those of the mother. Both parties are responsible and caring parents who want the best for the children. Both parties have much to offer and a valuable contribution to make to the children's upbringing and input into decisions for their long-term care. The orders will set out comprehensively the requirement for the provision of information by each party to the other in relation to health and educational matters and permit the attendance upon health and educational professionals by both parties.
136The mother is a responsible parent and can be trusted to confer with the father and include him in important decisions. The orders will set out precisely what the parties are required to do to give effect to the order I intend to make with respect to parental responsibility. I am satisfied that the orders below are those which are in the children's best interests.

The children's living arrangements during the school terms

137The parties' proposals are as set out above. The mother proposes an immediate increase in time from two nights each fortnight to three nights and then after a period of time an increase to four nights each fortnight. The father seeks an immediate increase to four nights each fortnight and increasing to six nights after eight weeks.
138I consider that with effect from the commencement of Term 1 in 2021 the children should spend time with the father for four nights each fortnight that is from Friday to Sunday in week 1 and Wednesday to Friday in week 2. Thereafter with effect from the commencement of Term 3 in 2021, the time at the weekend should extend to three nights that is, from Thursday to Sunday. Ultimately, the children will spend five nights each fortnight with the father going forward. I consider this arrangement to be in the best interests of the children for the following reasons:
•The father has sensibly moved to a location close to the mother's home. The parties now live just over a kilometre from each other. The children's time with the father can be facilitated easily. If there are any difficulties the children are close to both parents. In the past the primary difficulty for the mother was the distance between the parties' homes and the travel for the children. That is the reason that until now the time has been limited.
•The children are aware that the father lives close to the mother's home. I am satisfied they want to spend more time with him. This arrangement will suit Child A in particular. He and Child B at times have been unsettled on returning to the mother's home partly because they enjoy their time with the father.
•There are no separation issues. The children transition between the parties without difficulty.
•Although the mother offers a graduated increase in time to four nights, I am mindful that she proposes the children spend up to five nights with the father in the school holidays and is of the view that they can cope with that number of nights away from her.
•The children are not at risk of harm in the care of either party except if the father involves the children in adult issues. He has done so in the past. Once these proceedings are at an end, his conduct is this respect should improve.
•I consider this arrangement gives the children a stable base with the mother and meaningful time with the father.

139The time I propose to order is substantial and significant time. Substantial and significant time includes days that fall on weekends and holidays and days that do not and is time which allows a parent to be involved in the child's daily routine and events of particular significance to both parent and child.
140I am mindful of the objects of the legislation, including that the children's best interests are met by ensuring that they have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the children. The orders I intend to make are consistent with this.

The children's living arrangements in the school holidays

141The mother proposed that the children spend time with the father for up to five nights from Tuesday to Sunday in the second week of the holidays at the end of Terms 1, 2 and 3 and two blocks of five nights in the holidays at the end of Term 4 being in the first week of January and the last week of the holidays.
142The father proposed that the living arrangements during the school term continue during the holidays but those arrangements be extended during the holidays at the end of Terms 2 and 4, such that the children spend blocks of time with him.
143In discussion both parties acknowledged that a preferable arrangement may be that the living arrangements during the school terms be suspended during the holidays and provision be made for the children to spend time with the father. This would enable them to have extended periods of time with both parents during the holidays.
144I consider that with effect from 2021, the children should spend time with the father for five nights in the holidays at the end of Terms 1, 2 and 3. In the holidays at the end of Term 4 in 2021, the children should spend two periods of one week with the father.
145I consider that with effect from 2022, the children should spend one week with the father in the holidays at the end of Terms 1, 2 and 3 and half of the school holidays at the end of Term 4, to be taken in one week blocks unless the parties agree otherwise.
146I am mindful that the orders I propose to make in relation to the children's time with the parties in the holidays differ to those sought by each party, although these arrangements were discussed with them and both were receptive to other arrangements.
147I consider these orders to be in the best interests of the children for the following reasons:
•As at trial the children have spent up to three nights with the father. I consider the children will enjoy spending extended periods of time with him during the holidays when the need for structure and routine is less important than during the school term.
•This arrangement can be facilitated with ease.
•The extended periods of time enable the children to enjoy a holiday with the parent with whom they are living and enables them to travel away from Perth if they choose to do so.
•The father has a comfortable home close to that of the mother and he is able to provide for the children's needs during extended periods of time.

148This arrangement will be clearly set out in the orders below. Is it a simpler and more straightforward arrangement than that proposed by the parties. It provides certainty to the children. It also provides certainty to the parties with less scope for disagreement about dates and times pertaining to the children's arrangements. This is important because the father intends to find employment and he will have certainty in his commitments to the children. This should also avoid the need for protracted correspondence between the parties.
149There is always an opportunity to the parties to vary the children's arrangements provided such variations are agreed in writing and I shall order accordingly.

Handover

150It is not in dispute that when possible, handover will take place at the children's school or vacation care or after school care. When it does not the father's preference is that it take place at Location A or other location as may be agreed. He deposed that given the mother's "proclivities" this was safer for him being a high traffic public location with CCTV. I am not persuaded that the mother poses any risk to the father's safety. The mother deposed Child A is embarrassed when asked by friends what he is doing at handover and Child B occasionally becomes anxious and emotional.
151I consider that handover should take place at the parties' homes when it does not take place at school or vacation care or after school care. There is no need for the parties to go to Location A when their homes are so close to each other. I shall order that the mother deliver the children to the father's home at the commencement of the children's time with him and the father deliver the children to the mother's home at the conclusion of that time. I consider this is an arrangement which is better for the children, as it enables them to transition directly between the homes.
152The parties previously agreed that family members would not be involved in handovers although the mother sought an order that the parties be at liberty to appoint their parents, relatives or friends to undertake handover where necessary. The father did not consent nor oppose such an order. I shall therefore order that handovers may be undertaken by a nominee of the parties provided that person is known to the children. The nominee will simply deliver or receive the children and there is no need for the nominee to come into close proximity to a parent.

Birthdays

153The effect of the orders proposed by both parties is that the children will remain with the parent with whom they are living on their birthdays. The mother seeks no orders in respect of their birthdays. The father proposes that the children spend time with him from 11.00 am to 4.00 pm on the closest Saturday to the birthday in every even year. I consider the children would enjoy the opportunity to celebrate their birthdays with each of their parents and I shall make the order sought by the father.

Telephone communication

154The mother seeks an order that the children have telephone communication with her on the first overnight of their stay with the father. On an occasion in the past she requested such telephone communication and the father forgot to make the call. The father sought no order for telephone communication with the children but in principle did not oppose the mother making one call and proposed a Thursday at around 6.30 pm. Ultimately it was not disputed that the mother could initiate a call to the children at 6.30 pm on the first overnight with the father. To avoid any difficulties I will order that the call be initiated and occur between 6.30 pm and 7.00 pm.
155I consider it to be in the best interest of the children that they are able to have telephone communication with the parent with whom they are not living in accordance with their wishes and that the parent with whom they are living shall facilitate the call. For the purpose of the orders regarding telephone communication the parties will keep each other informed of their contact details.

Travel

156Once border restrictions permit, both parties who are sensible, responsible parents should be able to take the children interstate and overseas. It was not suggested either party was a flight risk. I consider the parties can both be trusted not to take the children to an unsafe destination. I consider it is sufficient for the parties to give notice of travel, and the consent of the other party is not required. The mother proposes she hold both children's passports. The father proposes that each parent hold one passport. In the absence of agreement about this issue and to avoid conflict in the future, I shall make the order sought by the father and my orders will set out when a party is required to provide a passport to the other party prior to travel.

Injunctions

157I will make the injunctions as to non-denigration and not discussing these arrangements and Court proceedings with the children. Upon the evidence I do not consider there is a proper basis for making an order that a person over the age of 80 should not drive with the children. I am not satisfied the maternal grandmother poses a risk to the children, such that there should be an injunction restraining her from being in the presence of the children unless supervised. She provides assistance to the mother in caring for the children. I do not consider it necessary to make an order that the parties be restrained from exposing the children to age inappropriate material. Although this occurred on one occasion the mother properly conceded it should not happen again.

Extracurricular activities

158The parties have had difficulty dealing with the issue of the children's extracurricular activities cooperatively. I consider it would be beneficial to the children to participate in sporting and extracurricular activities in accordance with their wishes. Each party will be at liberty to enrol the children in extracurricular activities and the other party should use their best endeavours to take the children to those activities in their time. This should not be difficult to facilitate as the parties live close to each other.

159Clearly it is in the best interests of the children that the parties communicate and confer regarding this aspect of their care.
160The mother proposes that the parties should communicate with the other if any arrangements are made for the children to attend an event such as a birthday party while the children are in the other parent's care. The father is opposed to this order. The father took issue with the mother accepting birthday invitations for the children, if their attendance at the event was to take place while the children are in his care.
161I consider the children should have an opportunity to attend birthday parties and other events which they are likely to enjoy irrespective of which parent they are with. I intend to order that a party in receipt of an invitation for the children to attend an event or birthday party in the other party's time shall promptly provide the invitation or details of the event to the other party for acceptance or refusal on behalf of the children.

Mother's Day and Father's Day

162Neither party sought orders for the children to spend time with them on Mother's Day and Father's Day. I consider the children would enjoy spending such time with the appropriate parent on this special day. Subject to hearing from the parties, I propose to make orders suspending the children's usual time with the parties on Mother's Day and Father's Day.

Method of communication

163The mother proposes that all communication between the parties be through Our Family Wizard but in the case of medical emergencies, mobile telephone communication is acceptable. The father proposes the parties communicate by way of email. The mother deposed the use of this app would be beneficial to the parties' communication and it would remove derogatory or belittling language. The app includes a joint calendar, which will be helpful to plan events relevant to the children, including birthdays. Taking into account the impact of the father's communication upon the mother I consider it would be appropriate to make the order sought by the mother and for the parties to communicate through Our Family Wizard.

THE PROPOSED ORDERS

164Subject to hearing from the parties and counsel, I propose to make the following orders, which I consider to be in the children's best interests.
1All previous parenting orders concerning the children [CHILD A] born [in] 2010 and [CHILD B] born [in] 2015, be discharged.
Parental responsibility
2The mother, [MS DEVLIN] have sole parental responsibility for making decisions about the health and education of the children.
3Before the mother makes a decision as it relates to the health or education of the children she shall:
(a)notify the father, [MR DEVLIN] via "Our Family Wizard" of the decision she intends to make and the reasons for the decision;
(b)seek the fathers comments on the decision she intends to make;
(c)take into account any comments the father makes about the decision she intends to make, provided such comment is received via "Our Family Wizard" from the father within five days of notice being given by her; and
(d)notify the father via "Our Family Wizard" of the decision she has made.

4Subject to orders 2 and 3 above, the parties have shared parental responsibility for making decisions about major long-term issues concerning the children.
5Unless contrary to the children's immediate welfare, the parties shall, before making any major long-term decision about the children:
(a)consult with each other in writing setting out any major long-term decision making proposal and the reasons for that proposal;
(b)give proper consideration to the proposal and respond in writing in a timely manner, making a genuine effort to resolve any issues; and
(c)in the event any dispute is unable to be resolved, the parent making the proposal shall consult with a Family Dispute Resolution practitioner and invite the other parent to attend in an effort to resolve the dispute.

Living arrangements during school terms
6During the school terms the children shall live with the parties in a fortnightly cycle as follows:
(a)with effect from the commencement of Term 1 in 2021:
(i)in Week 1 with the father from between 4.00 pm and 5.15 pm Friday until 4.00 pm Sunday;
(ii)in Week 2 with the father from between 4.00 pm and 5.15 pm Wednesday to the commencement of school Friday; and
(iii)with the mother at all other times

(b)with effect from the conclusion of the school holidays at the end of Term 3:
(i)in Week 1 with the father from between 4.00 pm and 5.15 pm Thursday until 4.00 pm Sunday;
(ii) in Week 2 with the father from between 4.00 pm and 5.15 pm Wednesday to the commencement of school Friday; and
(iii)with the mother at all other times.

Living arrangements during the school holidays
7In 2021 the children shall spend time with the father for five days during the holidays at the end of Terms 1, 2 and 3. In the absence of agreement the children's time with the father shall commence at 8.30 am on the second Tuesday after the conclusion of the school term and conclude at 4.00 pm on the following Sunday.
8In 2021 the children shall spend time with father for two separate weeks during the holidays at the end of Term 4. In the absence of agreement the first period of one week shall commence at 8.30 am on the first Saturday in January and conclude at 4.00 pm on the following Saturday. The second period of one week shall commence at 8.30 am on the third Saturday in January and conclude at 4.00 pm on the Saturday following.
9In 2022 and thereafter the children shall spend one week with the father in the holidays at the end of Terms 1, 2 and 3 and half of the school holidays at the end of Term 4, to be taken in one week blocks. In the absence of agreement the children's time with the father shall commence at 8.30 am on the first Saturday after the conclusion of the school term and conclude at 4.00 pm on the following Saturday.
10At the conclusion of the school holidays the fortnightly living arrangement as provided for in order 6 shall resume as if the holidays had not occurred.
Special occasions
11Unless otherwise agreed between the parties in writing the children shall live with the mother as follows:
(a)from 4.00 pm on the evening preceding Mother's Day until 4.00 pm on Mother's day;
(b)at Christmas as follows:
(i)in 2020 and each alternate year thereafter from 4.00 pm on Christmas Eve until 4.00pm on Christmas Day; and
(ii)in 2021 and each alternate year thereafter from 4.00 pm on Christmas day until 4.00 pm on Boxing Day.

12Unless otherwise agreed between the parties in writing, the children shall spend time with the father as follows:
(a)from 4.00 pm on the evening preceding Father's Day until 4.00 pm on Father's Day;
(b)at Christmas as follows:
(i)in 2020 and each alternate year thereafter from 4.00 pm on Christmas Day until 4.00pm on Boxing Day; and
(ii)in 2021 and each alternate year thereafter from 4.00 pm on Christmas Eve until 4.00 pm on Christmas Day.

(c)from 11.00 am to 4.00 pm on the Saturday closest to each of the children's birthdays in each even year.

13The children spend time with the parties on other special occasions as may be agreed between the parties.
Variations
14The father and the mother be at liberty to have the children live or spend time with each of them other than as set out in these orders and are at liberty to vary these orders provided such variations are agreed in writing.

Handover
15Where practicable handover shall take place at the children's school(s) including vacation care and after school care.
16When handover does not take place at school or vacation care or after school care unless otherwise agreed the mother shall deliver the children to the father's residence at the commencement of the time the children spend with him and the father shall deliver the children to the mother's residence at the conclusion of such time.
17Both parties be at liberty to nominate another person to deliver the children to the other party provided that person is known to the children
Electronic Communication
18The children shall have telephone communication with the mother on one occasion during the time they spend with the father provided that time exceed two overnights, with the mother to initiate the call to the father's mobile telephone between 6.30 pm and 7.00 pm on the first overnight.
19The children shall have telephone communication with the party with whom they are not living or spending time in accordance with their wishes with the party and whom they are living or spending time is to facilitate the call to the other parties' mobile telephone.
Travel
20The parties may remove the children from the State of Western Australia for the purpose of a holiday either interstate or overseas provided that:
(a)the proposed holiday shall not coincide with the time the children are to spend with the non-travelling parent, unless the non-travelling parent agrees in writing;
(b)the travelling parent shall provide to the other parent, no less than 60 days notice of the proposed holiday, with said notice to include the destination of travel and departure and return dates; and
(c)not less than 7 days prior to the departure date, the travelling parent shall provide the other parent a detailed itinerary of their travel plans including flights, copies of return airline tickets, accommodation details and addresses, contact telephone numbers and details of appropriate travel insurance cover for the children.

21The children shall have electronic communication with the non-travelling parent as follows:
(a)on one occasion every three days commencing the first day of the first three days; and
(b)the travelling parent shall initiate the call to the non-travelling parent at 6.30 pm local time at the location where the children are.

22In the event of overseas travel the parties shall not take the children to a destination in respect of which there is a "Do not travel" warning issued by DFAT.
23The mother shall hold in her possession the passport for [Child A] and the father shall hold in his possession the passport for [Child B].
24If either party requires both passports, then that party shall request in writing the delivery of the passport and the passport shall be provided to that party within seven days of the request. The passport shall be returned within seven days of the children's return from overseas travel or sooner, if required.
25The parties each sign all documents and do all things necessary to renew the child's passports as required and share the costs of the renewal of the children's passport equally.
26The parties have liberty to apply with respect to any intended travel.
Provision of information
27The parties shall keep the other party informed as to their residential addresses and telephone numbers and inform the other party of any changes not less than seven days prior to such change occurring.
Medical
28Each party shall notify the other as soon as reasonably practicable of any accident or emergency involving the children which involves medical treatment or hospitalisation whilst the children is in that party's care, with each party giving any medical or health professional the authorisation necessary to discuss any matters relating to the children with both parties.
29Each party shall ensure that the other party is named as the next of kin or emergency contact after that party on all medical records for the children.
30Each party shall provide the other with reasonable notice of any specialist, emergency or medical appointments made for the child and to provide all authorities and consents necessary to medical and health care professionals to enable each party to discuss any matters relating to the child and to attend such appointments.
31Each party shall advise the other of any medication prescribed to the children and both parties shall ensure the children continue with such medication or prescribed treatment while the children are in their care.
Education
32These orders are authority to the schools attended by the children:
(a)to provide to both parties at their request and expense, reports, notices and school photographs; and
(b)to discuss with both parties the children's progress.

33The parties are permitted to provide a copy of these orders to the schools attend by the children from time to time and any authority which may request them.
34Each parent and extended family members may attend any public, social, sporting or school event involving the children and both parents shall:
(a)inform the other parent of such events in a timely manner;
(b)communicate to the other if any arrangements are made for the children to attend such an event whilst the children are in the other parent's care; and
(c)that each parent use Our Family Wizard to enter events for the children on the shared calendar and communicate as to orders 34(a) and (b).

Extracurricular Activities
35The parties shall consult and endeavour to reach agreement as to the children's enrolment in extracurricular activities.
36Failing agreement, each party be at liberty to enrol the children in extracurricular activities, and the other party shall use his or her best endeavours to ensure the children attend that activity while in their care.
37Each party is permitted to liaise with all extracurricular and/or sporting organisations and attend all events in relation to the children.
38Each party shall promptly after receipt give to the other details of any invitation to attend a birthday party or other event that will occur during a time when the children will be with the other parent for reply by that party.
Injunctions
39On a without admission as to need basis the parties be restrained and an injunction be granted restraining the parties from:
(a)denigrating the other parent, the other parent's partner or any other member of that parent's family or permitting any other person to do so within the child's presence or hearing, or permitting any third party to do so; and
(b)discussing these proceedings with the children or within their earshot or permitting any other person to do so.

Programs
40As soon as practicable both parties shall enrol in, attend and complete the Mums and Dads Forever program and provide written confirmation of such enrolment, attendance and completion to the other party.
41The mother shall use her best endeavours to cause the children to attend the Supporting Children after Separation program and keep the father informed in relation thereto.
Procedural
42All extant applications otherwise be dismissed.
43All 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.
44In relation to material tendered as an exhibit into evidence in these proceedings:
(a)all parties must collect the exhibits tendered by them ("their exhibits"), from the chambers of Justice Duncanson, at least 28 days, and no later than 42 days, from today's date;
(b)all parties must contact the chambers of Justice Duncanson to arrange the collection of their exhibits; and
(c)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.

45In the event of an appeal being lodged prior to the expiration period of 42 days, paragraphs 43 and 44 above do not apply.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
RM
Associate
30 DECEMBER 2020