DICKENS and SHELLEY

[2018] FCWA 165

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: DICKENS and SHELLEY [2018] FCWA 165

CORAM: DUNCANSON J

HEARD: 6 & 7 AUGUST 2018

DELIVERED : Ex tempore

FILE NO/S: PTW 6930 of 2011

BETWEEN: MR DICKENS

Applicant

AND

MS SHELLEY

Respondent

Catchwords:

CHILDREN - Interim parenting orders - Child's time with the father to be supervised - Hearing to be expedited

Legislation:

Family Court Act 1997 (WA)

Category: Reportable

Representation:

Counsel:

Applicant	:	No Appearance
Respondent	:	Ms D Taylor
Independent Children's Lawyer	:	Ms M Losinski

Solicitors:

Applicant	:	Self-Represented Litigant
Respondent	:	Lavan Legal
Independent Children's Lawyer	:	Calverley Johnston

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

1These proceedings concern seven year old [G].

2 The application before the Court is that of the father, [Mr Dickens] filed 30 October 2017. The father seeks to have orders dated 20 April 2015 reinstated such that visits between G and him recommence immediately. The father proposes that handovers be facilitated by Relationships Australia. He requires the mother to attend a drug and alcohol program, a family violence program and to undergo drug testing.

3 The father proposes that after six daytime visits with G the time progress to overnight.

4 The mother opposes the orders sought. She proposes a gradual reintroduction with supervised time.

BRIEF BACKGROUND

5 On 20 April 2015 orders by consent were made providing for the mother to have sole parental responsibility for G, and that she live with the mother. The orders provided that G spend unsupervised time with the father on an increasing basis. The orders provided that within 24 months from the date of orders, the parties attend mediation regarding overnight time.

6 Those orders having been made by consent, the trial did not proceed. The allegations and counter-allegations made by the parties were never tested and no findings made.

7 G spent time with the father. He calculates that from the time of the orders until 8 October 2016, G had 82 visits with him, with the handovers supervised.

8 The father says these visits went very well and he experienced no behaviour problems with G. He said she was happy to see him and at times was reluctant to go home.

9 The father relies on a report from Relationships Australia dated 19 January 2017, which was largely in favourable terms concerning the father's time. Staff noticed a change in G's behaviour after about July 2016 and in particular she found the handback transition difficult.

10 The mother says she began to have concerns about G's behaviour in 2015. G was grinding her teeth, had rashes and bruises, became regressive and clingy. The mother says G was disruptive at school and aggressive. G began seeing Clinical Psychologist, [Ms L] in June 2015. G also made disclosures to the mother suggesting inappropriate sexual behaviour on the part of the father.

11 G ceased spending time with the father in October 2016.

12 On 14 December 2016 the father filed a contravention application. As a consequence of that application the mother was ordered to file an initiating application and notice of risk of child abuse or family violence, with the father to file a response.

13 Both parties have filed a notice of risk. The Department for Child Protection and Family Support provided its response on 11 May 2017. The Department was of the view that no further action was required by it.

14 The parties attended a case assessment conference on 11 May 2017 and the Family Consultant reported at length as to the allegations of both parties. At that time, the question of whether G had been sexually harmed by the father was under investigation, however in July 2017 the police confirmed no charges would be laid against the father in relation to allegations which had been made.

15 Upon the application of the Independent Children's Lawyer, Ms Johnston, [Mr R], Clinical Psychologist was re-appointed as Single Expert.

16 The father filed this application because by October 2017, a year had passed, and G had not spent time with him. The father refused to agree to an order that G's time with him be supervised.

17 The father now presses for an order which will enable G to spend unsupervised time with him, although he concedes that there should be some supervision for handovers. That order is opposed by the mother.

18 Mr R provided a comprehensive report dated 18 June 2018. I am mindful that this evidence, as with all of the evidence in the matter, has not yet been tested.

19 These are interim proceedings only. I am unable to make any findings in fact and cannot do so until the evidence has been tested at a final hearing.

20 The father's position is that he should spend time with G on an unsupervised basis, although handovers should be supervised. The mother requires any time G spends with the father to be gradually reintroduced and supervised.

21 On the mother's case it is necessary for me to make an assessment of any risk posed by the father to G, if he spends unsupervised time with her. On the father's case it is necessary for me to make an assessment of any risk posed by the mother to G with the current living arrangements.

22 G's best interests is the paramount consideration. To determine what orders are in her best interests I must consider the primary and additional considerations as set out in the Family Court Act 1997 (WA) to the extent I consider them necessary and relevant. There is much contested evidence and I can only therefore give limited consideration to these considerations.

23 The mother has been G's primary carer since her birth. It is likely G's relationship with her is a meaningful one. The same cannot be said about G's relationship with the father at this time as G has not spent time with him now for almost two years.

24 I now turn to whether there is a need to protect G from harm in the care of either parent. The mother alleges that G returned from visits with the father upset, with bruises and complaining of a sore head. The mother fears the father has been physically violent to her. G had health issues and behavioural issues at school. The mother says G reported to her that the father hit her and she became distressed. The mother says G told her she had seen the father's penis and she was afraid of the father.

25 The father strenuously denies harming G in any way and says an investigation has cleared him of any unfounded allegations of sexually inappropriate behaviour. The father alleges the mother has a drug and alcohol abuse problem, and he refers to the mother being under the influence of alcohol when collecting G from Relationships Australia. The father alleges the mother was involved in a domestically violent relationship with her former partner, and that G was exposed to family violence. The father says G has told him that the mother has harmed her and behaved inappropriately in her presence.

26 Ms L provided a report dated 23 January 2017 expressing concerns about the parents' behaviour and the impact on G, which she said was likely to be contributing to G's emotional insecurities.

27 Mr R reported that the school reported to him that there were a number of unanswered questions about G's difficulties, including absenteeism, regressing academically, and struggling socially with her peers.

28 There are also health concerns, with G complaining of headaches.

29 Mr R's preferred hypothesis was that the mother's parenting and home environment had resulted in most of G's symptoms and behaviours. He sets out the reasons for this in his report and those reasons include the mother having been G's primary carer. Mr R does not accept that the father is the main contributor to G's symptoms. He appears to question the physical ailments and is of the view that G is exposed to stressors in the mother's home.

30 Mr R also reports that G's sudden end to her relationship with the father would have affected her sense of security, predictability and safety, although he says this is on the premise that she has not been harmed in any way by the father. He says the father would have supported G better had he agreed to supervised visits.

31 While Mr R reported as to his preferred hypothesis regarding the mother's parenting, he also said, at page 33 of his report:

I do not hold significant or out of the ordinary concerns that the father is a risk to parent the child. The caveat being that the Honour does not find substantial facts indicating the father abused the child in some manner.

32 In other words, Mr R refers to the necessity to make findings in fact in this matter, and he says he cannot confidently assist in a parenting plan with the information available to him.

33 At this interim stage, I can make no finding as to whether there is a need to protect G from harm in the care of either party. I do not have an explanation for her behaviour. The parties' views as to the reasons for the behaviour exhibited by G are polarised.

34 G has a close relationship with the mother, but not currently with the father.

35 G was interviewed briefly by Mr R. She described the father as "mean".

36 The mother has made decisions about major long-term issues in relation to G.

37 For the purposes of the hearing today, it is not proposed by either party that G be separated from the mother, although the father reserves his position in that respect to trial.

38 The practical difficulty and expense pertaining to G's time with the father relates to the requirement for supervision.

39 I am unable to make any finding as to the capacity of each of G's parents or any other person to provide for her needs, including her emotional and intellectual needs.

40 Mr R described G as confident and determined to do what she wanted, although delayed in her development. He said she is not reaching her developmental milestones and experiences problems not usually associated for children of her age.

41 At this interim stage, I am unable to make any findings as to the attitude to G, and the responsibilities of parenthood demonstrated by each of the parties. Mr R says both would find it difficult to promote G's relationship with the other. Both believe the other to pose a risk to the child.

42 Both parties allege there has been family violence between them in the past, although no findings in fact have yet been made. There is no family violence order in effect.

43 A final order has been made that the mother have sole parental responsibility for G.

44 The issue for determination is the time G should spend with the father and whether that should be supervised. That determination necessarily involves an assessment of whether either of her parents pose a risk of harm to her.

45 Upon the evidence, I am unable to make a finding that G is, or is not, at risk of harm in the care of either party. In view of the conflictual evidence, the decision I require to make is a very difficult one. For that reason I propose to take a conservative approach to the matter at issue. I consider it to be in the best interests of G to recommence spending time with the father, but that that time should be supervised by an independent, or some other, agency.

46 It has already been almost two years since she has seen the father. The longer the time elapses the more difficult it might be to become reacquainted. An advantage of supervision is that the Court can be provided with a report from the supervisor, which will be independent evidence as to G's reactions and behaviour in the company of her father. It is only to be expected that there may be some difficulties at the commencement of the time. The time will have to be carefully monitored to ensure that this change in G's circumstances does not cause any harm to her.

47 I realise that this outcome will be disappointing and possibly distressing to the father, as it is not the outcome he desires, and he is strongly opposed to the requirement for supervision and the implication that comes with it. It is necessary for him to understand that supervised time is ordered as a precaution in the absence of any findings regarding whether either parent poses a risk of harm to G.

48 I acknowledge that the father contends that G remains living with the mother notwithstanding his very serious allegations about her and the hypothesis upon which Mr R relies in his report. The father's concerns about the mother will be matters addressed at trial. I consider to change G's living arrangements at this time, notwithstanding the risks the father alleges, would not be an outcome which would be in her best interests. The father does not seek this change in his application. Until trial, the mother should remain G's primary caregiver.

49 Following the parties' conferral with the ICL and after hearing further submissions, I made the orders below.

ORDERS

1Orders in terms of the Minute of Proposed Orders dated 8 August 2018.

2The hearing of these proceedings be expedited.

3The parties and their lawyers, if represented, attend a Readiness Hearing on 22 October 2018 at 10.00 am, in the Duty Judge List.

4The proceedings be included in the cases awaiting allocation of a trial date to be called over on 23 November 2018 at 9.00 am, the estimated hearing time for trial is 5 days.

5By no later than 7 days prior to Callover each party provide the Court and each other party with a Callover certificate in the form prescribed by the Principal Registrar from time to time.

6At the Readiness Hearing each party must satisfy the Court that the case is ready for trial and be prepared to provide the Court with the following information:

(a)the issues for determination at trial;

(b)a reasoned assessment of the likely length of a trial;

(c)the expected length of opening and closing addresses; and

(d)a list of witnesses and the time needed for examination and cross-examination of the witnesses.

7By no later than 8 September 2018 the parties file and serve a Minute of Proposed Orders sought setting out the orders they are now seeking on a final basis.

8By no later than 8 October 2018, each party file and exchange with each other party:

(a)a single standalone affidavit with no more than 15 annexures setting out the whole of that party's evidence in chief for the purposes of the trial;

(b)an affidavit of each witness with no more than 5 annexures to each affidavit; and

(c)a list containing the names of any proposed witness who has refused to provide an affidavit.

9If there is a dispute involving expert evidence, the experts shall confer by no later than 14 days prior to trial. Each party must provide to any expert they have instructed a copy of the document entitled "Expert's Conferences – Guidelines for expert witnesses and those instructing them in the Family Court of Western Australia". The experts shall prepare and provide to the parties a joint statement setting out the issues that are agreed and not agreed, identifying the reasons for disagreement on any issue and identifying what action (if any) may be taken to resolve any outstanding issues. The report may be tendered to the Court as evidence of matters agreed upon and to identify the issues on which evidence will be called.

10By no later than 7 days prior to the date fixed for the Readiness Hearing each party shall file and serve a Trial Plan setting out:

(a)the expected length of that party's opening and closing addresses; and

(b)the list of witnesses required to be called and the time needed for examination and cross‑examination of the witnesses.

11By no later than 7 days prior to the date fixed for the Readiness Hearing each party (except the Independent Children's Lawyer) shall file and serve a written undertaking as to disclosure in the form set out in the Family Law Rules 2004, attaching each party's list of disclosure documents.

12No earlier than the allocation of the trial date but no later than 28 days before the first hearing day of the trial, and subject to any subsequent costs order made by the Court, waiver or exemption:

(a)the Applicant, [MR DICKENS] and the Respondent, [MS SHELLEY] shall each pay 50% of the non-refundable setting down fee for a 5 day trial; and

(b)for the purposes of this order, the fees payable by the Applicant be rounded up to the nearest dollar and the fees payable by the Respondent be rounded down to the nearest dollar.

13The Applicant, the Respondent and the Independent Children's Lawyer, have permission to issue Subpoena to produce documents returnable in a Subpoena List in the usual course.

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

RM
ASSOCIATE

23 AUGUST 2018