FARCHARI and FARCHARI

[2016] FCWA 85

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: FARCHARI and FARCHARI [2016] FCWA 85

CORAM: THACKRAY CJ

HEARD: 13 JULY 2016

DELIVERED : Ex tempore

FILE NO/S: PTW 1061 of 2016

BETWEEN: MR FARCHARI

Applicant

AND

MS FARCHARI
Respondent

Catchwords:

CHILDREN - WITH WHOM A CHILD SPENDS TIME - The mother and children live in [City A] and the father lives in Perth - Interim orders made for the father to spend time with the children - Matter transferred to the Family Court of Australia at [City A].

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant: Self Represented Litigant

Respondent: Ms Morrison

Solicitors:

Applicant: Self Represented Litigant

Respondent: Gadens Lawyers

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

Nil

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

1The proceedings before the court today were commenced on 2 March 2016 by an Initiating Application filed by the father, [Mr Farchari]. The proceedings concern the welfare of the two children of the marriage of Mr Falchari to the respondent, [Ms Falchari]. The two children are [Ellie], who was born [in] 2008 and who is therefore now 8 years of age; and [Fraser], who was born [in] 2014 and is therefore now 2 years of age.

2The father is a fly-in fly-out worker on a 23/10 roster, which he has been working for considerable time and which he is likely to work until the end of this year. The father was initially proposing that the children live on an interim basis with either the paternal or maternal grandparents, all of whom live in [City A], and that the mother be at liberty to reside with the children at those premises. It was proposed that if the mother continued to reside in City A, the father would have contact with the children during his rostered days off. He specifically proposed to have contact for a period of not less than four hours per day, with not less than five overnight stays during his visits to City A.

3The father also proposed that the mother undergo a mental health assessment by a suitably qualified professional and undergo any treatment recommended by the professional. The application went on to say that upon the mother’s mental health issues being resolved and her healthcare professionals being satisfied that she would comply with her treatment program, the children would reside with the mother when the father was working away, and with the father when he returns from work.

4In the alternative, the father sought that the children be returned to live in Perth, where they have lived in recent years, to reside with him at the former matrimonial home. He sought that the mother be at liberty to reside at the home and have supervised contact with the children, but if she did not reside in the home, that she have contact with the children for a period of not less than four hours a day, to be supervised by the father and/or his parents.

5In her response filed on 24 March 2016, the mother sought that the proceedings be transferred to the Family Court of Australia at City A; that she have sole parental responsibility; that the children live with her; and various other orders, but without anything specific about contact with the father.

6On 11 April 2016, the father filed an amended application in which he proposed the return of the children to Perth; that he have sole parental responsibility; that the mother have supervised contact for not less than four hours a day; and various other orders, including the appointment of an Independent Children’s Lawyer.

7When the matter last came before me, having previously been dealt with by other judicial officers, I made orders for the filing of affidavit material in relation to the father’s plans for the care of the children if they return to Western Australia, and evidence relating to the application for the transfer of the proceedings to the Family Court of Australia in City A.

8Since then, affidavits have been filed by both parties, and the father is now representing himself in these proceedings. Although a matter such as this would normally have been dealt with quickly on the affidavit evidence alone, the father was here today with both of his parents, who had come over from City A, and his sister, who ordinarily works [interstate]. Given the gross disparity in the evidence of the parties, I took the view that it would be helpful for me, and potentially for any single expert who is later appointed in the matter, to take some evidence orally from the father and his parents and sister, and that has occurred this morning.

Transfer of proceedings

9The matter proceeded today on the basis that the father has, in my view, sensibly not pressed his application for the children to be returned to Western Australia. This would have involved the children being uprooted again from the arrangements that have been made for them in City A since early this year. It would also have involved his parents having to come to Western Australia to assist him to care for the children, given that he plans on retaining his employment, albeit he has given evidence that his employer was prepared to be flexible.

10As it was common ground, in effect, that the children would continue to live in City A, the father very sensibly accepted that it would be appropriate for this litigation to occur in City A, given that this is where the mother, the children and a number of important witnesses live, including the grandparents and the mother’s mental health advisors.

11The only question, therefore, is whether or not the matter ought be transferred to the Federal Circuit Court or to the Family Court of Australia. It will be for the courts in City A to determine where the matter is best heard, but I note that this case potentially presents as a “Magellan” case. It involves significant allegations in relation to both parents and significant issues relating to matters of mental health. In those circumstances, counsel for the mother has recommended that the court ought transfer the matter to the Family Court of Australia, and she has made some enquiry by telephone this morning indicating that if the matter was deemed to be urgent, then a fairly early listing could be obtained.

12In some respects the orders that I propose to make today will remove the urgency from the situation, because I intend to allow the father to resume his relationship with the children. It is then a matter for the Family Court in City A to determine what priority this case should have as compared to others. However, to get the ball rolling in the litigation that will take place in City A, I intend to make an order, which has been sought by both parties on the papers, for the appointment of an Independent Children’s Lawyer. I will also make a recommendation that Legal Aid [in] City A give consideration to providing funding, if required, for the appointment of a single expert to provide a report.

Father’s time with the children

13The substantive issue which I am required to determine today is the extent to which the father ought be permitted to spend time with the children. Without tracing the whole background of the matter, it is common ground that the mother has been primarily responsible for the care of the children. The father has been continuously engaged in fly-in fly-out employment on the roster that I mentioned earlier. The extent to which the father has been involved in the care of the children during his time off work is in contest. He says that he has been fairly extensively involved, without denying that the mother has been the primary carer, whereas the mother paints a picture of him having less involvement and interest. It is not possible for me to make any finding of fact in relation to that matter today, as the issue has not been explored in the oral evidence and I have not heard from the mother.

14There is sufficient evidence, including what I have heard from the grandparents and sister, to satisfy me that the father has been a very significant and important person in the children’s lives, and that it would be in their best interests for him to have a meaningful involvement in their lives.

15The mother has made a significant number of serious allegations in relation to the father, including that there has been sexual abuse of the child Ellie, that he has engaged in domestic violence towards the mother, and that he is otherwise a person who ought not spend unsupervised time with the children. The father strongly denies all of these allegations. In the absence of a full hearing and hearing evidence from the mother, it is not possible to arrive at a concluded view in relation to these issues. However, it is important to observe that there is sufficient information before the court to indicate that the mother’s mental health has been quite delicate, to say the least. In this regard I refer to the report from a psychologist who met with the couple on a number of occasions last year, which is before me as part of the evidence without objection.

16The mother’s behaviour during the course of the couple counselling indicated that she was somewhat emotionally overwhelmed, to the extent that it was recommended by the psychologist that she have a mental health check and, in fact, he mentioned the possibility of her being hospitalised. The mother had previously been diagnosed with a condition that prompted her medical advisers to put her on [medication] for [a] disorder. The concerns expressed by the psychologist are backed up by the evidence given by the father and his family about somewhat erratic behaviour on the part of the mother, including some indications of paranoia, not just directed to the father, but to others.

17It is clear from the evidence, including from the report from the Department of Health and Human Services which has been provided pursuant to an order made under s 67Z of the Family Law Act 1975 (Cth), that in the whole time that the parties were living in Western Australia, there has been no involvement by the local child protection authority in the lives of these children. The father’s evidence, which I was inclined to accept, indicated that there had also been no involvement by the police or any other authorities. Hence, these allegations and concerns on the part of the mother appear to have been of quite recent origin. It is also noteworthy that the investigation by the Department of Health and Human Services in City A has not indicated any evidence to substantiate the allegations that the mother is now advancing.

18As far as the mother’s ongoing mental health is concerned, she gives evidence in her affidavit of being under the care of a psychiatrist and continuing to have medication. As far as the father’s mental health is concerned, he has given evidence of having visited a psychiatrist in [Suburb A] some time ago. On the strength of one interview, he was diagnosed with depression and potentially coming within a spectrum of a personality problem. He was prescribed an antidepressant which he has been faithfully taking. He now receives prescriptions from his medical practitioner rather than from the psychiatrist, who he has not seen again. On the father’s own description, the medication has been most advantageous, as it has assisted him to cope with what would have been an exceedingly stressful time in his life, when the mother decided to stay in City A permanently. The father has been able to hold down employment and control his emotions.

19For the benefit of any single expert engaged in the matter and any other judicial officer involved in the matter, I need to make some brief observations concerning the father and his family. The father presented in an extremely calm and appropriate fashion. I have to say that his affect was a little flat, which may be in accordance with his usual affect, but it is hard to judge when someone is in the foreign environment of the courtroom. However, he was appropriate, sensible and appeared to be largely focused on the best interest of his children.

20The paternal grandparents and the father’s sister presented exceptionally well. They were very sensible, appropriate and well presented. The paternal grandparents are stable, having lived in the same home for 20 to 30 years. Prior to their retirement, they held down responsible positions, and they are now engaged in voluntary community work. They spoke exceptionally well, and described their contact with the mother post-separation in a way which satisfied me that they have not allowed the separation to stand in the way of them having a respectful relationship with the mother and continuing to have a good relationship with the children.

21The sister is [an administrator]. She has been working in remote communities, although she has now resigned from that position and is planning to travel for a while before she decides what life holds for her.

22What can be said, if supervision is necessary, is that these people would be entirely appropriate to safely look after the interests of Ellie and Fraser. Both grandparents have Working with Children Checks, but their presentation is more important, and they can be safely relied upon. In terms of their involvement in the lives of the children in the past, the children have spent the last years living in Perth. As a result, they have not seen a great deal of each other, but the children have occasionally been to City A and the grandparents have occasionally been over here, so they are known to the children and particularly well known to Ellie.

23There has been some communication between the father’s family and the mother since she went to City A. The mother appropriately took children to see the paternal grandparents, but for reasons which are not explained on the evidence that I have thus far, that contact has regrettably come to an end, and they have not seen each other for some months.

24The father has not seen the children since the mother went to City A. He has been over there on a couple of occasions around the times of the children’s birthdays in the hope of seeing them, but no arrangements were put in place for that to occur prior to his departure. The father went to Ellie’s school, but the principal understandably did not think it was appropriate for the father to see Ellie there. The father received advice from the principal, which he appropriately included in his affidavit, that Ellie seemed to be doing well at school and presenting well.

25It is not entirely clear on the evidence to what extent the mother is receiving assistance from her family in looking after the children now that she has moved out of the home of the maternal grandparents. The mother speaks of there being some regular contact with her parents, who on all accounts are also good people. The father and his family suspect that the mother is receiving significant assistance from the grandparents, in particular, the grandmother. They also suspect that she would be receiving significant assistance from her sister, who on the evidence of the father’s family also appears to be a good person.

26Although I do have serious concerns from what little evidence I have in relation to the mother’s mental health, the fact that the mother does have the support of her parents and her sister is a protective feature for the children and an important matter to consider in understanding why the father is prepared for the children to continue to reside with the mother for much of the time.

27The father’s ultimate aim is that if the children are going to remain in City A, which seems to be very likely, then he has no hesitation in saying that he will be returning to City A when his work finishes up, which it sounds like it will in the not too distant future. He is hoping to have as much care of the children as possible, and at one point, he discussed the possibility of an equal shared care arrangement.

28In his evidence, the father appropriately referred to his understanding of how important it was for the children to have a relationship with both parents. Hence, he has no difficulty with the mother having significant involvement in the life of the children. However, he is understandably concerned about her mental health and wishes to be satisfied that she is in a fit state to contribute to caring for the children.

29The evidence of the father and his family indicates that there have been some quite serious difficulties for the mother. For example, they have described her as being concerningly thin when they last saw her, and they have talked about her somewhat erratic behaviour. It may be, as the mother says, that the stressors associated with separation have contributed to her presentation, and it may be that she is doing better now than she was before. All of these things are unknown to the court.

30What is sufficiently clear is that whilst there are some matters of real concern in relation to the mother’s presentation and capacity to look after the children, it would not be desirable in the short term for that arrangement to be disturbed substantially. Therefore, the children should primarily continue to reside with the mother when the father is working. It remains to be seen, once there is a proper hearing of the matter, what the appropriate arrangements will be. Clearly, that is going to depend on evidence that I simply do not have, including more satisfactory evidence of the mother’s current psychiatric health. It will also depend upon what the father’s arrangements are if he returns to live in City A.

31The real issue that I have to determine today is the extent to which the father should be spending time with the children. In this regard, the father says that he will spend his time when he is not at work in City A, living with his parents, who have entirely appropriate accommodation with which Ellie in particular is familiar. There is no doubt in my mind that he can make adequate physical arrangements for the children.

32The point of difficulty in deciding how much time the father should spend with the children arises from two facts. The first significant fact is that through no want of trying on his behalf, it is now some six months since he has seen the children. Although that will be significant for Ellie, it will be particularly significant for Fraser, who is still quite a young child and has simply not been able to have contact with his father. The re-introduction of the father into the lives of the children therefore needs to be handled with more sensitivity than would otherwise be necessary. Of course, the second significant factor is Fraser’s age, which would be significant even if the father had been able to see the children occasionally over the last few months.

33The father understandably wants to spend every minute possible with the children when he is in City A. The mother’s position conveyed to me through her counsel is that she is firmly opposed to the father spending time with the children other than under professional supervision. In advancing that position, the mother points to her concerns in relation to sexual abuse and family violence, and expresses concerns as to whether or not the grandparents would be able to deal with those issues if and when they arise.

34On the evidence that I have available to me, I do not consider it likely that there will be any issues of family violence while the father is living in the home of his parents. In the event that any such issue arose, I would be more than confident that the parents would deal with that adequately. In relation to the issue of sexual abuse, this is a more insidious matter which is harder to make comment about, particularly at such an early stage in the proceedings, but again, on what evidence I have available, I have little concern in that regard.

35I take account of the submissions being made on behalf of the mother that the fragility of her mental health is such that it may be concerning to her if the children were to spend unsupervised time with the father. It would no doubt be concerning to her if the children spend extensive periods of time away from her. I understand and appreciate what the father has said, that this is the mother’s problem, but it is not entirely her problem, because if she does not deal with it adequately, then it can rebound upon the children.

36In my view, at this very early stage of the proceedings, and recognising that I do not have all of the evidence that will ultimately be available, I should adopt a fairly cautious approach. The orders that I propose to make reflect what I see as being a cautious approach and do not reflect what would be the appropriate arrangement in the longer term. In the longer term, I would want to see the father spending more overnight time with Fraser than I propose to order, and there could be other changes to the arrangements.

37The orders that I intend to make take into account the fact that the father will only be able to spend time with the children for periods of about 10 days. I take into account the fact that Ellie is at school and that it would be desirable for any arrangement not to cause too much disruption for her. I take into account the fact that ideally, each child should visit the other parent for the same periods of time lest, for example, one child feels that they are being discriminated against and missing out.

38I propose to make orders that the father reside with his parents when he is in City A, which he is planning to do. I also intend to order that the parents be present overnight in the home when the father is there. I do not intend to restrict the father and his family by requiring them to be present with him for every minute of the day. Therefore, if the father wishes to take the children on excursions during the time that he is with them, then he will be permitted to do so without his parents having to accompany him. Of course, it is entirely a matter for them whether they do accompany him. In some circumstances, other families would accompany the parent to avoid allegations during the proceedings that the children have been interfered with when the parent was not under supervision.

39In terms of parental responsibility, notwithstanding the lack of communication between the parents, I am unable to see why the mother should have sole parental responsibility. The father presents in an entirely satisfactory and child-focused fashion. It might be thought, although I cannot be entirely confident, that his mental health is more stable than that of the mother. In my view, it would be important for the children to have his input in any long-term issues that might arise between now and the time of trial. That said, now that Ellie is in school, there probably are not many long-term decisions that need to be made before these proceedings are completed. The first order will therefore be that until further order, the mother and the father have equal shared parental responsibility.

40Having made an order for equal shared parental responsibility, I am then required to consider whether equal time would be appropriate, which it is not, because it is not practicable. I am then required to consider whether substantial and significant time is appropriate, which in my view, it is. It would be in the interests of these children to resume their relationship with their father at the earliest opportunity and for them to spend significant periods of time with him when he is not working.

41As for what that time should be, subject to hearing any submission in relation to the detail, my intention is that:

•during weekends for this coming school term in City A, only Ellie will have an overnight visit with her father on the Saturday night, but that if the court in City A has not made an order to the contrary, as from the start of the next school term, then Fraser would start spending one night with the father on a weekend;

•when the father is in City A on weekends, the children shall otherwise be with him during the day; and

•on Tuesday and Thursday of each week, after an initial restriction to four hours for the first four visits, Fraser will be with his father from the start of school until 6.00 pm, and Ellie will join them from the end of school until 6.00 pm.

42On this arrangement, when the father is in City A, the children will see him on Tuesdays, Thursdays, Saturdays and Sundays, so for a significant part of the week. In those times, they will clearly have the opportunity to be spend their nights with their mother and also some days. I appreciate that the father would like to see the children every day, but I consider that this arrangement will be more stable for the children in the short term.

Orders

1.Until further order, the Respondent mother, [MS FARCHARI], and the Applicant father, [MR FARCHARI], have equal shared parental responsibility for the children, [ELLIE] born [in] 2008 and [FRASER] born [in] 2014.

2.Until further order of the Court, the father shall spend time with the children on the following basis:

(a)the father resides in his parents’ home when visiting [City A] to see the children;

(b)that at least one of the father’s parents be present from 6.00 pm to 9.00 am the following day whenever the children are in the home;

(c)save for the first four visits, the father spend time with [Fraser] on Tuesdays and Thursdays during school term from the start of school to 6.00 pm;

(d)the father spend time with [Ellie] on Tuesdays and Thursdays during school term from the end of school to 6.00 pm;

(e)during school holidays the father spend time with both children on Tuesdays and Thursdays from 9.00 am to 6.00 pm;

(f)on weekends the father spend time with [Ellie] from 9.00 am, Saturday to 6.00 pm, Sunday;

(g)until the start of the next school term, the father spend time with [Fraser] on weekends from:

(i)9.00 am to 6.00 pm Saturday; and

(ii)9.00 am to 6.00 pm Sunday;

(iii)from the start of the next school term, the father spend time with [Fraser] on weekends from 9.00 am, Saturday to 6.00 pm Sunday; and

(iv)the father’s first four visits with [Fraser] shall be for periods of four hours only.

3.The father’s time with the children in accordance with Order 2 shall commence from Tuesday, 19 July 2016, provided that the father shall have time with the children on Saturday, 16 July 2016 and Sunday, 17 July 2016 for 4 hours on each day (such periods to be taken as being the first two of the four visits mentioned in Order 2(i)).

4.When the father is working, the mother shall make the children available for one telephone call each week, at a time consistent with the father’s work.

5.The father shall advise the mother’s solicitors in writing as soon as practicable of the dates between which he proposes to spend time and communicate with the children pursuant to these orders.

6.The mother shall set up an email account at which the father can communicate with her and the children.

7.Legal Aid [City A] is requested to make available an Independent Children’s Lawyer for the children, together with funding, if required, for the appointment of a Single Expert.

8.In the event that an Independent Children’s Lawyer is appointed, and if requested to do so, the parents shall attend upon such psychiatrist or health professional as the Independent Children’s Lawyer may nominate for a mental health assessment.

9.The proceedings be transferred to the Family Court of Australia at the [City A] Registry with a request for a listing for directions at a time convenient to the court.

10.A transcript of the evidence given orally today shall be provided free of charge to the parties and the [City A] Registry of the Family Court of Australia.

I certify that the preceding [42] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate