FELTHAM and FELTHAM
[2014] FCWA 84
•16 DECEMBER 2014
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: FELTHAM and FELTHAM [2014] FCWA 84
CORAM: WALTERS J
HEARD: 19, 21, 24, 25, 26, 27, 28 MARCH & 13, 14, 18, 19, 20 & 21 AUGUST 2014
DELIVERED : 16 DECEMBER 2014
FILE NO/S: PTW 4004 of 2010
BETWEEN: MRS FELTHAM
Applicant
AND
MR FELTHAM
Respondent
Catchwords:
FAMILY LAW – PARENTING ISSUES – Whether children should live with mother or father – Where parties had implemented a shared care arrangement – Where father commenced home schooling children – Where father highly critical of mother – Where Court makes interim orders placing children in the full-time care of father as a consequence of allegations which are later found to be unsubstantiated or exaggerated – Where older children align with father while in his care and express negative views of mother – Where older children present as aggressive and disdainful towards mother – Where older children assert that mother does not love them – Where single expert has serious concerns regarding father's temperament, honesty and motivation – Where Court subsequently reverses previous interim orders and places children in the full-time care of mother – Where orders made for children to attend mainstream schools – Where father presented as opinionated and controlling – Finding that father demonised mother and turned children against her – Finding that father encouraged children, whether directly or indirectly, to dislike mother, to treat her with disrespect and to reject her as a person and as a parent – Where father's attitudes have impacted adversely on the children – Where mother clearly capable of providing for children's needs, including emotional and intellectual needs – Where father not currently capable of providing for children's emotional needs – Consideration of Family Law Act 1975 s 60CC factors – Conclusion that it is in children's best interests to live with mother and for mother to have sole parental responsibility
Legislation:
Family Law Act 1975 (Cth), Pt VII, s 60B, s 60CA, s 60CC, s 61D, s 61DA, s 64B, s 65DAA, s 65DAC, s 60DAE
s 4(1)
Category: Not Reportable
Representation:
Counsel:
Applicant: Self Represented Litigant
Respondent: Mr L Kristopher
Independent Children's Lawyer : Mr L Young
Solicitors:
Applicant:
Respondent: Lumlan & Associates
Independent Children's Lawyer : Legal Aid WA
Case(s) referred to in judgment(s):
Champness & Hanson (2009) FamCAFC 96
Collu & Rinaldo [2010] FamCAFC 53
Cox & Pedrana (2013) FLC 93-537
Goode & Goode (2006) FLC 93-286
Hungerford & Tank [2007] FamCA 637
In Oscar and Traynor (2008) FamCA 95
Jets & Maker (No 2) [2011] FMCAfam 1473
M & S (2007) FLC 93-313
Marsden & Winch (No 3) [2007] FamCA 1364
Mazorski & Albright (2008) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
McGregor & McGregor (2012) FLC 93-507
McLay & McLay (1996) FLC 92-667
Mills & Watson (2008) 39 Fam LR 52
Moose & Moose (2008) FLC 93-375
MRR v GR (2010) 240 CLR 461
Re F – Litigants in Person Guidelines (2001) FLC 93-072
Saxena & Saxena (2006) FLC 93-268
Taylor & Barker (2007) FLC 93-345
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL
JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN
CHANGED
Introduction
1This case is about the living arrangements for three children; [Child A], [Child B] and [Child C]. Child A is twelve, Child B is ten and Child C is nine. The primary question for determination is with which parent the children should live and the contact they should have with the non-resident parent.
2The parents separated in March 2008. In the period initially following separation, the children lived with their father and saw their mother every evening or nearly every evening. In August, a formal agreement was reached whereby the children lived with the father and spent time with the mother each alternate weekend and for two nights a week, although it appears the mother spent more time with the children (with the father's knowledge and approval).
3As proceedings relating to financial matters progressed, however, the relationship between the father and the mother began to disintegrate and, in May 2011 the father filed a Form 4 Notice of Abuse or Family Violence. In May of 2012, the father made certain allegations to the effect that the mother had been violent to the children. As a result, the children were placed in his sole care.
4In 2013, and following the release of a report by the Single Expert, the living arrangements for the children were reversed. Relevantly, interim orders were made to the effect that the children live with the mother. An injunction was granted restraining the father from approaching the mother and the children.
5The mother now proposes that final orders be made in similar terms. That is, she proposes that she should have sole parental responsibility for the children, that they should continue to live with her and that the father's contact with the children should be supervised. She also seeks orders designed to prevent the father from approaching her and/or the children.
6At the commencement of the trial, the father proposed that he have sole parental responsibility for the children and that they live with him, spending time with the mother on alternate weekends. When the trial recommenced in August 2014, however, the father modified his position: he proposed that the children should live with the parties in a shared care arrangement.
7The mother and the father were both parties to the proceedings. In addition, an Independent Children’s Lawyer ("ICL") was appointed to represent the interests of the children.
8The mother was unrepresented at trial. The father was represented by Mr Kristopher. The ICL, Ms Leah Young, represented herself.
9After a trial that occupied 13 days, I concluded that it was in the children’s best interests to live with their mother and have supervised contact with their father until such time as he could satisfy the mother that his attitude and behaviour had changed. If he could do so, then he should begin to have unsupervised contact with the children.
10I made orders to this effect on 25 August 2014. I indicated at the time that reasons for my decision would be provided later. These are my Reasons.
Background
11In these reasons, unless otherwise indicated:
a)all statements of fact comprise findings of fact;
b)I have referred to the parties as the mother and the father (and I mean them no disrespect by doing so) – because it is less confusing than referring to them as the applicant and the respondent; and
c)I have not drawn a distinction between proceedings or events in the Magistrates Court, 150 Terrace Road, Perth and proceedings or events in the Family Court of Western Australia (given that the two Courts operate “in tandem” and exercise similar jurisdiction).
12Although the law now refers to a child “spending time” with a person with whom the child does not live, I shall use the obsolete term “contact” from time to time in these Reasons. I have elected to use the superseded term because it is both more convenient and less grammatically challenging to do so.
13The mother was born in Vietnam in October 1978. It follows that she is now 35. The father was born in Australia in September 1960. He is now 53. The parties met in 2000 at university, where the mother was studying and the father was a tutor. At the time, the mother was a relatively recent immigrant to Australia and was without any close friends.
14The couple commenced cohabitation in October of that year. They married on [in] February 2001 and separated in March 2008. They divorced on 24 June 2013.
15Final orders in relation to financial matters were made on 23 August 2012. The property proceedings were heard on an undefended basis because the father failed to file his documents in time.
16There are three children of the marriage: Child A, born [in] 2002, Child B, born[in] 2003 and Child C, born [in] 2005.
17As indicated above, the mother was born in Vietnam. She came to Perth in 1998 to undertake undergraduate study. She is currently employed as a compliance officer for [R Company]. She is clearly an intelligent and capable person.
18The father is currently unemployed. Throughout the marriage, he appears to have held various positions: working as a landscaper, a [trainer], for [E Company], for [F Company] and [N Company]. His position at F Company required the family to relocate to Canberra, which they did in April 2005. At the time, the mother was pregnant with the youngest child, Child C.
19While in Canberra, the father had some difficulties with his employment at the F Company, and eventually stopped working there. He then took on the day-to-day care of the children. The mother continued to work in paid employment. At the same time, the relationship began to deteriorate.
20In April 2008, the couple returned to Perth. The father and the children moved into the paternal grandmother’s home and the mother found rental accommodation close by. According to her, this allowed her to visit the children every evening after work. The children also spent almost every weekend with her. The mother commenced paying child support at this time.
21The children continued to reside primarily with the father, who remained unemployed. He denied that the mother saw the children as frequently as she claimed. The father also asserted that the mother did not properly disclose her income in order to minimise her child support obligations and that, as a result, he and the children were forced to live in poverty.
22The father was then, and is now, in receipt of Centrelink payments.
23In October 2008, the mother agreed to trial home schooling for the children for a short period of time. As a result, the father withdrew Child A from Suburb R Primary School and registered him for home schooling. It appears that this was not successful and when the father sought to withdraw Child B from school to begin home schooling her, the mother objected.
24The parties reconciled in June 2009. In October 2009, they and the children moved to a residential property in [Suburb S], which had been purchased in the mother's name ("[Property S]"). Property S is across the road from [S Primary School] ] (and the three children were enrolled there. They commenced at S Primary School in February 2011.
25The attempted reconciliation failed in April 2010, but the parties, although separated, continued to live in Property S. The father did not move out of Property S until December 2010.
26In the same month (December 2010), the father made an allegation of family violence against the mother, her father and her new partner, Mr [Carter]. In May 2011, the father filed a Form 4 Notice of Abuse or Family Violence. The children and the mother were then interviewed by the Department of Child Protection and Family Services ("DCPFS") in July 2011, but DCPFS concluded that the allegations were unsubstantiated. Later that month, the father reported his allegations to the Child Abuse Unit of the Western Australian Police. After an investigation, they too concluded that the alleged abuse was unsubstantiated.
27On 25 April 2012, Child A and Child B left the mother's home and "ran away" to the father. It seems that they left because of the manner in which the mother and Mr Carter dealt with a tantrum thrown by Child C. It was not in dispute that Child C’s behaviour was mishandled on that occasion. When the mother went to collect Child A and Child B from the father, the father took Child C (who the mother had brought with her) and refused to return any of the children.
28The father then arranged for the children to be counselled by Ms Janine Hughes. He asked her to write a report for this Court regarding the violence perpetrated by the mother. After interviewing the children, Ms Hughes wrote the report. She did not speak to the mother.
29On 1 May 2012, the mother filed an application for a recovery order. Later that month, however, and after Ms Hughes' report had been made available to the Court, interim orders were made for the children to live with the father and for the mother to have supervised contact only.
30The mother was deeply upset by the removal of the children from her care and by the making of orders allowing her supervised contact only. Shortly afterwards, she suffered what might be described colloquially as a nervous breakdown and spent a number of weeks in hospital. At the same time, Child A was diagnosed with Type 1 Diabetes and was hospitalised. While the mother contacted the father, requesting to see Child A, the father refused. He also refused to allow her to attend an education program (run by Princess Margaret Hospital) for parents of children with diabetes.
31After the mother left hospital, she attempted to organise visits with the children. Supervision was arranged through Mrs Doubtfire, but the father proved obstructive. There were two organised contact visits. The first proceeded without incident. The second, on 2 June 2012, did not occur because the father refused to send Child A and Child B. The father subsequently said this was because the children were unwell, but no medical certificates were provided.
32Two more contact sessions were organised between the mother and the father, with the father acting as supervisor. The first was an outing to a park where the father observed from a distance. The second involved the mother attending a birthday party at which the children were present. After that, the father refused to facilitate any further visits.
33In April 2012, the father removed Child A from S Primary School. Shortly afterwards, Child B was also removed. The school was provided with a medical certificate, dated 30 July 2013, which did not specify an end date. The father claimed that the children were anxious and stressed at S Primary School and that it was causing them to become depressed. He commenced home schooling them.
34In order to see the children, the mother volunteered as a parent helper in Child C’s class at S Primary School, attending on two days per week. Although Child A and Child B were being home schooled, she was able to see them during lunch breaks as they attended S Primary School to participate in swimming and music lessons.
35In September 2012, a single expert was appointed to prepare a Family Report. Interviews for the report were conducted between December 2012 and February 2013.
36In February 2013, the mother was advised by the principal of S Primary School that the father had withdrawn all three children from the school. The father then registered Child B and Child C for home education and enrolled Child A at [C Primary School] in [Suburb C]. Child A was enrolled in the school's program for gifted children.
37In the same month, the father asked Ms Hughes, who was still seeing the children for counselling, to prepare a second report for the Court. In the course of preparing this report, Ms Hughes became increasingly concerned about the father’s attitude and behaviour.
38Mr Darin Cairns, the single expert, completed his report on 7 June 2013 ("the first family report"). He recommended that the children should be returned to the care of the mother. Orders were later made to that effect. At the same time, an injunction was granted preventing the father from approaching the mother or the children. In the course of writing the first family report, Mr Cairns had contact with Ms Hughes – who told him that she no longer believed the content of her initial report to be accurate, and that she was in fear of the father.
39The mother re-enrolled Child B and Child C at S Primary School, while Child A continues at C Primary School. Upon resuming classroom education, Child C was found to be significantly behind the other students. She was in need of remediation, and was required to repeat Year 3.
40It appears that, on at least two occasions, the father failed to comply with the terms of the injunction preventing him from approaching the mother or the children. On one occasion, he spoke to Child B by telephone; on another occasion he stopped his car and spoke to her while she was walking home from school. In August 2013, Child B left school without permission in the middle of the day. She was later located at the father's home.
Relevant procedural and other history
41These proceedings commenced on 20 July 2010, when the mother filed an initiating application. Among other things, she sought orders to the effect that the parents have equal shared responsibility for the children.
42On 9 August 2010, the father was ordered to file responding material.
43On 3 September 2010, orders were made requiring both parties to attend the Mums & Dads forever program as soon as practicable. The orders, which were made by consent, also restrained the parties from physically disciplining the children.
44On 7 October 2010, various parenting orders were made by consent. They included orders to the effect that the parties were to have equal shared parental responsibility for the children and that the children were to live with the father and spend time with the mother on a fortnightly cycle as follows:
a)in week one – from 3.30pm on Wednesday until 3.30pm Friday; and
b)in week two – from 3.30pm on Wednesday until 8.30am Monday.
45The orders also provided that, when the children were living with the mother, she was to deliver them to the father’s residence at 8.30am for the purpose of home schooling. She was to collect them from the father's home at 3.30pm.
46On 24 January 2011, orders were made that the mother and father do all things reasonably necessary to enrol the children at S Primary School for the commencement of the 2011 school year. On 31 March 2011, further orders were made restraining the parents from altering, or attempting to alter, the children's enrolment at S Primary School.
47The father filed a contravention application on 22 February 2011. He alleged that the mother had contravened the orders of 3 September 2010 in that she had allowed Child C to be repeatedly smacked by the maternal grandfather. A conference was scheduled for 28 March 2011, at which the issues raised in the contravention application could be discussed but no agreement could be reached on that date. On 29 April 2011, the mother formally denied the alleged contravention.
48In May 2011, the father filed a Form 4 Notice of Abuse or Family Violence.
49On 6 May 2012, interim orders were made to the effect that the children were to live with the father and that, until further order, the mother’s time with the children be supervised by an agreed upon third party or, if an agreement could not be reached, a professional supervising agency.
50At the same time, orders were made for the appointment of an Independent Children’s Lawyer.
51On 7 June 2012, orders were made to the effect that, should the children become unduly upset while in the mother’s care, she was to return them to the father. The orders also dealt with the return of a number of personal items belonging to the children.
52Procedural orders were made on 23 August 2012, 21 September 2012, 11 October 2012 and 5 February 2013.
53Orders appointing a single expert were made on 24 September 2012.
54On 7 June 2013, orders were made reversing the parenting arrangements that then adhered. The mother was granted sole parental responsibility for the children, and orders were made that they live with her. I shall discuss the circumstances leading to the making of these orders later in these Reasons.
55The orders of 7 June 2013 also restrained the father from:
a)approaching the children, attending the children’s school or approaching within 100 metres of the school ground or any other venue the children regularly attend;
b)approaching within 100 metres of the mother, attending at the mother’s house or place of employment or any other venue the mother regularly attends; and
c)contacting the children’s counsellor (Ms Hughes), or approaching within 100 metres of her residence.
56Further procedural orders were also made on that day, and again on 27 August 2013, 30 August 2013, 10 September 2013, 15 November 2013 and 28 November 2013.
57The trial was eventually set down to commence on 3 December 2013.
58On 29 November 2013, the father filed an application in a case seeking that the trial be vacated and that he be given an additional 60 days to file and serve his trial material. On 3 December, having heard Mr Quartermaine-Thompson for the father, the ICL and the mother, I adjourned the matter to the January 2014 Callover and gave the father until 3 February 2014 to file his material. Additional orders were also made that the father was to spend time with the children on a strictly supervised basis at the Relationships Australia child contact centre in Fremantle. The contact was to be on a fortnightly basis, for approximately two to three hours on each occasion.
59The trial was due to commence on 19 March 2014. On that day, however, counsel for the father (Mr Kristopher), sought another adjournment in order to familiarise himself with the brief. He had been instructed shortly before the trial.
60Having had regard to –
a)the fact that this was the second time the husband had sought to adjourn or vacate the trial date;
b)factors relating to the Court's resources; and
c)the potential injustice to each of the parties in allowing or disallowing an adjournment,
I resolved to delay the commencement of the trial to 21 March 2014.
61The trial formally commenced on 21 March 2014 and continued until 28 March 2014. It did not conclude and was adjourned on a part-heard basis. It was later listed to recommence on 13 August 2014.
62In the interim, the father changed legal representatives and, on 22 July 2014, his new legal representatives filed an application in a case seeking another adjournment of the trial on the grounds that they did not have sufficient time to prepare for the resumption of the hearing on 13 August 2014.
63The application in a case was dealt with on 1 August 2014. After hearing all parties, including the ICL, I concluded that it would cause a serious injustice to the mother to grant an additional adjournment, and that it would be an unnecessary and costly delay to a trial that had already been adjourned twice previously.
64Thus, the trial resumed on 13 August 2014. As matters transpired, the father did not instruct the lawyers who represented him on the application for adjournment of the trial. Instead, he was again represented by Mr Kristopher. The trial ran for a further five days with closing addresses being delivered on 21 August 2014.
65Given the importance of the proceedings to the parties, I advised them that I would inform them of the result on 25 August 2014 – but that I may not have time to prepare Reasons for Judgment by that time.
66On 25 August 2014, I made the orders appearing at the end of these Reasons. I had prepared a minute of the orders that I proposed to make, which I gave to the parties at the commencement of the hearing on 25 August 2014. I invited the parties to consider the form of the minute and to advise me of any suggested amendments. The proceedings were stood down to enable the parties to consider the minute, but no objections were raised. It follows that, although the orders were clearly not made by consent, their form was agreed.
Documents relied upon
67The mother relied on her trial affidavit, sworn 26 August 2013, and a supplementary affidavit sworn 24 February 2014. She also relied on the affidavits of:
a)[Mr Lang], sworn 19 August 2013;
b)[Mr McBride], sworn 21 August 2013;
c)[Ms Reinhold], sworn 16 August 2013;
d)[Mr Tran], sworn 25 August 2013;
e)[Mr Graham], sworn 20 August 2013;
f)Mr Carter, sworn 8 January 2013;
g)[Ms Zupan], sworn 20 November 2013; and
h)[Ms Griffith], sworn 21 January 2013.
68The father relied on a number of his own affidavits, including his trial affidavit, sworn 27 August 2013 and three supplementary affidavits, sworn 3 February 2014, 28 November 2013 and 6 September 2013. He also relied upon the affidavits of:
a)[Ms Talong], sworn 4 September 2013;
b)[Mr Mason], sworn 30 January 2014;
c)[Mr Jackson], sworn 2 February 2014;
d)[Ms Wilson], sworn 2 February 2014;
e)[Mr Franklin], sworn 2 February 2014; and
f)[Mr Frost], sworn 3 February 2014.
69The ICL relied on a number of her own affidavits, attaching various reports. She also relied upon the affidavits of:
a)Janine Hughes, sworn 21 November 2013;
b)Janine Hughes, sworn 6 March 2014;
c)Sally Wright, sworn 18 November 2013; and
d)a report from the Department of Child Protection, dated 8 August 2011.
The mother’s proposals
70The mother’s proposals were set out in a minute of proposed orders attached to her papers for the judge, filed 13 March 2014. In broad terms, the mother sought sole parental responsibility for the three children, and that they live with her.
71She also sought that the father spend time with the children for up to three hours once a month on a weekend, and that this time be supervised.
72She further proposed that the father be restrained by injunction from:
a)approaching within 100 metres of the children, and attending at the children’s schools, school grounds or any other venue the children regularly attend;
b)approaching within 100 metres of the mother, or attending at the mother’s home or place of employment or any other venue the mother regularly attends; and
c)approaching the children’s counsellor.
The father’s proposals
73The father’s proposals were set out in a minute of proposed orders filed on 3 February 2014. In brief, the father initially sought to have sole parental responsibility for the three children, and that they reside with him. He also proposed that the mother have contact with the children each alternate weekend from 3.00pm Friday until 5.00pm Sunday. After the trial recommenced in August 2014, however, the father had just had the opportunity to see the children under supervision. As noted elsewhere in these Reasons, this had caused him to revise his position, and instead of proposing sole parental responsibility, the father advised the Court that he believed that equal shared care was more appropriate.
ICL’s proposals
74Ms Young submitted that the children should live with the mother and that the father should have supervised contact with the children through the Relationships Australia Child Contact service each fortnight for two hours.
75She also sought that –
a)the mother and the father attend mediation;
b)once the mediator is satisfied that the father has considered and addressed the mother’s concerns, family therapy involving the children is to occur; and
c)injunctions protecting the mother, the children and the children’s former counsellor Ms Hughes, from being approached by the father.
Parenting orders
76The following summary of the law is based on similar summaries in my decisions in Mills & Watson (2008) 39 Fam LR 52 and Jets & Maker (No 2) [2011] FMCAfam 1473.
77Applications concerning children (or, more accurately, applications for parenting orders) are dealt with in Pt VII of the Family Law Act 1975 ("FLA").
78The Full Court carefully analysed the structure and effect of Pt VII in Goode & Goode (2006) FLC 93-286. It began by identifying the types of orders that fall within the category of "parenting orders", and by referring to s 64B (which includes, among other things, a list of the matters with which a parenting order may deal). For example, orders allocating parental responsibility for a child, specifying the person with whom a child is to live or defining the time a child is to spend (or the communication a child is to have) with a person, are all parenting orders.
79Parenting orders dealing with the allocation of parental responsibility for a child can also deal with "the allocation of responsibility for making decisions about major long-term issues in relation to the child” [s 64B(3)]. Such issues include (but are not limited to) important questions regarding a child's education, religious and cultural upbringing and health. A proposed change to a child's name, or proposed changes to a child's living arrangements which would make it significantly more difficult for the child to spend time with one of his or her parents, are also regarded as major long-term issues. But a parent's decision to form a relationship with a new partner is not, of itself, a major long-term issue in relation to a child ─ even though such a decision could involve a major long-term issue if the new relationship requires the parent to move to another place (thereby making it more difficult for the child to spend time with the other parent): see the definition of "major long-term issues" in s 4(1).
80If a parenting order provides that parents (or others) are to share parental responsibility for a child, and if the exercise of that responsibility involves the making of a decision about a major long-term issue regarding a child, then the relevant decision must be made jointly. Further, an order for equal shared parental responsibility requires those in whose favour the order has been made to consult with each other in relation to any relevant major long-term issue, and to make a genuine effort to come to a joint decision [s 65DAC]. Such consultation is not required in relation to issues that are not major long-term issues, and a parent with whom a child is spending time will not normally need to discuss minor matters (such as what a child eats or wears) with the other parent [s 65DAE].
81As has long been the case, the child’s best interests remain the paramount consideration in the making of parenting orders. That principle is set out in s 60CA:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
82The objects of Pt VII, and the principles underlying it, are set out in s 60B. They are important.
83The objects of Pt VII are set out in s 60B(1). They are:
… to ensure that the best interests of children are met by:
•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
•protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
•ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
•ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of the children.
84The principles underlying these objects are set out in s 60B(2). They are:
... that (except when it is or would be contrary to a child's best interests):
•children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
•children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
•parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
•parents should agree about the future parenting of their children; and
•children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
85Given that all the expressed objects of Pt VII are directed towards ensuring that a child’s best interests are promoted, and given that the court must always regard the child's best interests as the paramount consideration in deciding whether to make a particular parenting order, the question of how a court determines what is or may be in a child's best interests is crucial. The subject is dealt with in s 60CC, which directs the court to consider a relatively lengthy list of factors before determining what is in a child's best interests. The list is divided into two parts, the first comprising "primary considerations", and the second comprising "additional considerations".
86The primary considerations are set out in s 60CC(2). They are:
a)the benefit to the child of having a meaningful relationship with both of his or her parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
87The additional considerations are set out in s 60CC(3). They include:
a)any views expressed by the child, and any factors that the court thinks are relevant in determining the weight that should be given to those views;
b)the nature of the child’s relationship with each of his or her parents and other relevant people (including grandparents and other relatives);
c)the extent to which each parent has taken (or failed to take) the opportunity to participate in making decisions about major long-term issues regarding the child, and to spend time or communicate with the child;
d)the extent to which each parent has fulfilled (or failed to fulfil) his or her obligations to maintain the child;
e)the willingness and ability of each parent to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
f)the likely effect of any changes in the child's circumstances (including as a result of any separation from a parent, sibling or grandparent with whom the child may have been living);
g)the practical difficulty and expense of a child spending time with and communicating with a parent (and the effect of such difficulty and expense on the child's right to maintain personal relations and direct contact with both parents on a regular basis);
h)the capacity of each of the parents, and of any other relevant person, to provide for the child's needs (including his or her emotional and intellectual needs);
i)the child's maturity, sex, lifestyle and background (including the child's culture and traditions);
j)in the case of an Aboriginal or Torres Strait Islander child, the child’s right to enjoy his or her indigenous culture;
k)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the parents;
l)any relevant family violence, or family violence order;
m)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"; and
n)any other fact or circumstance that the court considers relevant.
88The long list of additional considerations makes it clear that the court is required to focus on – among other things – each party’s "track record" as a parent.
89Although the primary considerations are listed before the additional considerations, they will not always "outweigh" them: see Champness & Hanson (2009) FamCAFC 96 at [101]. Clearly, the primary considerations "should be accorded particular importance in determining what order will best promote the interests of the child", but they will not always determine the outcome of the proceedings. Thus, in Marsden & Winch (No 3) [2007] FamCA 1364, the Full Court said at [78]):
…[the Court is] obliged to take into account all of the relevant considerations identified in the legislation, giving each of them such weight as [it thinks] appropriate in arriving at the result most likely to promote the child's best interests. … [Particular emphasis must be placed on the primary considerations] not only because the legislature has identified them as "primary" but also because they are manifestly of the utmost importance in determining what outcome will best advance the child's best interests.
90In considering the first of the primary considerations (being the benefit to a child of having a meaningful relationship with both of his/her parents) the "preferred" approach is to "consider and weigh the evidence at the date of the hearing and determine how, if it is in a child's best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents" – although an approach which involves examining evidence of the nature of the child's relationship as at the date of the hearing in order to make findings based on that evidence and to frame orders accordingly may also be relevant in certain circumstances: see McCall & Clark (2009) FLC 93-405 at [117-22]. Irrespective of the approach to be adopted, the benefit to a child of a meaningful relationship with his/her parents is not a legislatively defined presumption, or even an assumption.
91In Goode, the Full Court summarised the above process at [10]:
… in deciding to make a particular parenting order, including an order for parental responsibility, the individual child's best interests remain the paramount consideration … and the framework in which best interests are to be determined are the factors in ss 60CC ... The objects and principles contained in s 60B provide the context in which the factors in s 60CC are to be examined, weighed and applied in the individual case.
92Notwithstanding the Full Court's reference to a "framework", and to the context in which the factors comprising that framework are to be considered, a trial judge who is obliged to determine competing applications for parenting orders does not start with a blank sheet of paper: see, in a different context, McLay & McLay (1996) FLC 92‑667 at 82,901. Relevantly, certain conditional presumptions (relating to parental responsibility) may apply. Generally speaking, however, and subject to those presumptions, the court may make such parenting order as it thinks proper [s 65D(1)].
93When making a parenting order, the court must apply a presumption that it is in the child's best interests for his or her parents to have equal shared parental responsibility [s 61DA]. Such a presumption, although clearly important, says nothing about the amount of time that the child should spend with each parent.
94The presumption relating to equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent (or somebody living with a parent) has abused the child (or another relevant child), or has engaged in family violence. In interim proceedings, the application of the presumption is less strict: it does not apply if the court considers that "it would not be appropriate in the circumstances" for it to be applied.
95In circumstances where the presumption relating to equal shared parental responsibility would otherwise apply, it may be rebutted "by evidence that satisfies the court that that it would not be in the best interests of the child" for the parents to have equal shared parental responsibility [s 61DA(4)].
96Where parents are ordered to have equal shared parental responsibility for their child (whether as a result of the application of the presumption referred to above, or otherwise), the court must go on to consider whether the child spending equal time with each parent would be both reasonably practicable and in the child's best interests. If it is both of these things, then the court must consider whether it should make an order to that effect: s 65DAA(1). If the court comes to the conclusion that an order for equal time should not be made, it must then go on to consider whether the child spending "substantial and significant time" with each parent would be both reasonably practicable and in the best interests of the child. If it is both of these things, then the court must consider whether it should make an order to that effect: s 65DAA(2).
97In MRR v GR (2010) 240 CLR 461, the High Court said at [13] and [15]:
Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order (for equal time). ... A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. ... If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent. ...
Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. (Emphasis added.)
98The sequence in which the court should consider the various provisions discussed above (and other relevant matters) is not clear from Pt VII itself. In Taylor & Barker (2007) FLC 93-345, however, the Full Court said at [62]:
… (Given) that the concept of the child's best interests is the determinative factor in the application of so many of the provisions of Pt VII, and given that s 60CC(1) provides that in determining what is in the child's best interests, the Court must consider the matters set out in subsection (2) ("primary considerations") and subsection (3) ("additional considerations") of that section, it would seem only logical that the Court make findings regarding the matters contained in those subsections (so far as they are relevant in a particular case) before attempting to apply any other provision in Part VII in which the determinative factor is the subject child's best interests.
99The Full Court in Taylor & Barker added that failure to follow the above approach, which it clearly regards as the logical approach, does not necessarily amount to an appealable error. Such an error would arise, however, if a trial judge failed to give adequate reasons or did not have regard to ‘the matters which the legislation requires must be considered’.
100In Mazorski & Albright (2008) 37 Fam LR 518, Brown J dealt with the ‘additional considerations’ (in s 60CC(3)), prior to dealing with the primary considerations (in s 60CC(2)). In Moose & Moose (2008) FLC 93-375, Boland J, with whom May J agreed, approved of such an approach, saying that, in certain cases, it may help to focus the court’s attention on relevant matters to be determined under s 60CC(2) if it first considers and makes findings about relevant factors under s 60CC(3): see also Collu & Rinaldo [2010] FamCAFC 53 at [335].
101Having summarised the effect of Pt VII in Goode at [65], the Full Court then described – at [82] – the ‘legislative pathway’ that ‘must be followed’ in interim proceedings. There seems to be no reason, however, why the same pathway ought not to be followed at trial, where final orders are sought: see, for example, Hungerford & Tank [2007] FamCA 637 and M & S (2007) FLC 93-313 at [36].
102The relevant steps, as modified for a final hearing and taking into account the High Court’s decision in MRR v GR, are as follows.
a)Identify the parties’ competing proposals.
b)Identify the issues in dispute in the proceedings.
c)Make relevant findings in relation to the facts.
d)Consider the relevant s 60CC factors and, if possible, make findings about them.
e)Decide whether the presumption in s 61DA applies.
f)If the s 61DA presumption applies, then consider whether it has been rebutted because its application would not be in the best interests of the child.
g)If the s 61DA presumption applies, and has not been rebutted, then consider both of the following questions:
i)Is it in the best interests of the child to spend equal time with each parent?
ii)Is it reasonably practicable for the child to spend equal time with each parent?
h)If both of the above questions are answered in the affirmative, then consider making an order for equal time (although the court is not obliged to make such an order).
i)If the s 61DA presumption applies and has not been rebutted, but equal time is not in the child’s best interests, or is impracticable, then consider the two following questions:
i)Is it in the best interest of the child to spend substantial and significant time with the other parent?
ii)Is it reasonably practicable for the child to spend substantial and significant time with the other parent?
j)If both the above questions are answered in the affirmative, then consider making an order that the child spend substantial and significant time with the other parent (but, again, the court is not obliged to make such an order).
103In considering whether to make an order for equal time (or, alternatively, an order for substantial and significant time), the court is not required to assume that it is desirable that such an order should be made, or that the making of such an order is the default position under the FLA. Instead, the court must concern itself with the reality of the situation of the parent and the child; it must make a practical assessment as to whether equal time, or, alternatively, substantial and significant time, is both feasible and in the child’s best interests.
104If the s 61DA presumption does not apply or has been rebutted, or if it does apply but neither equal time nor substantial and significant time are both feasible and in the best interests of the child, then issues regarding the child’s living arrangements and the time that the child is to spend with each of the parents are ‘at large and to be determined in accordance with the child’s best interests’ (or, in other words, as a result of consideration of the objects and principles in s 60B and the factors set out in s 60CC): see Goode at [65.8].
105Throughout the entire process, the court must bear in mind that the child’s best interests ‘remain the overriding consideration’, and that those interests are to be ‘ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC’: See Goode at [65.11] and [65.9].
106Notwithstanding the dicta discussed above, the question of an appropriate ‘legislative pathway’ to provide guidance through the intricacies of Pt VII has continued to trouble judges at first instance. In Cox & Pedrana (2013) FLC 93-537, however, the Full Court said at [31]:
Whilst reference to a “legislative pathway” is, of course, an accurate descriptor of what individual sections within Part VII of the [FLA] require when taken together, care must be taken to not permit arguments about form to take precedence over the substance of what Part VII requires. Equally, care must be taken to ensure that the use of such an expression is not to be a suggestion that a particular order must be followed if error is to be avoided.
The mother was unrepresented
107Given that the mother was unrepresented, I was very conscious of the obligation upon the Court to provide a fair trial – for all parties. I am aware of the guidelines regarding the manner in which a judicial officer should deal with unrepresented litigants, and the associated discussion contained in Re: F – Litigants in Person Guidelines (2001) FLC 93-072 at [209] to [253]. I applied those guidelines during the course of the proceedings, and am comfortable that the trial was fair. In summary:
a)Procedural fairness was afforded to all parties.
b)The ‘mechanics’ of the trial, and the right of the mother to cross-examine witnesses, were explained to the mother.
c)Other relevant procedures were explained to the mother as they arose.
d)I explained to the mother that she had the right to object to inadmissible evidence, and explained to her – in very broad terms – the types of evidence that might be considered inadmissible.
e)Where appropriate, I attempted to clarify the substance of the mother’s submissions.
f)Where appropriate, I took other steps as authorised by the Full Court in Re: F – Litigants in Person Guidelines at [253]: see Guideline #9 in that paragraph.
108In Saxena & Saxena (2006) FLC 93-268, Coleman J emphasised that the type of guidelines set out in the previous paragraph ‘were no more than the name implies’ and that they ‘derive from the broader considerations of natural justice, implicit in which is the recognition that for a litigant in person to be afforded natural justice and procedural fairness, that litigant must have some appreciation of just what is going on’. His Honour added that the Court must be concerned with ‘the spirit rather than the strict letter of the guidelines’.
109In the present case, the mother participated in the process fully. I have no doubt that she fully understood ‘what was going on’ at all times.
The first family report
110On 24 September 2012, orders were made, by consent, to the effect that a single expert report be prepared. The orders set out the matters in relation to which the single expert was to report. There is no need for me to reproduce those matters; the orders speak for themselves.
111The single expert was Mr Darin Cairns, who is a clinical psychologist. Mr Cairns' qualifications were not seriously in dispute, although Mr Kristopher asked some questions about them in cross-examination.
112Mr Cairns' report (prepared pursuant to the orders of 24 September 2012) is dated 16 April 2013. I shall refer to it as "the first family report".
113The first report was admitted into evidence at trial without objection from any of the parties. Indeed, it became a joint exhibit.
114Much of the first family report was devoted to the father and his presentation during the course of his contact with Mr Cairns, as well as other people’s impressions of him. Example, Mr Cairns wrote at p 2:
[The father] presented as an articulate person although he used melodramatic language to express himself. He has an extremely negative view towards [the mother], a view that he seems intent on convincing people of. Most of the criticisms are highly subjective and interpretive. For example, her desire to see the children in the mainstream schooling system is viewed as "not caring" about their education. Her career success is viewed as "only caring about her career" and not her children and her reducing hours at work is characterised as "selfish" as it reduces how much money she gives to him. Indeed, even smaller issues such as making the children attend church or cooking them meals they do not like is seen as evidence of her "not caring", or even as 'abusive' in some way.
115Mr Cairns found it difficult to ascertain the extent to which this negative perception was unique to the father’s view of the mother or a personality trait – because the father expressed similarly critical views of his first wife, previous employers, colleagues, his parents and siblings and friends who had supported the mother.
116Mr Cairns was of the view that the father only spoke about the emotional and psychological welfare of the children when discussing the ‘damage’ the mother or traditional schooling had done to them. Other than this, Mr Cairns' view was that the father seemed primarily focused on the children's academic and performance-based success. He was particularly proud ofChild A’s’ achievements. Mr Cairns concluded (at p 4) that the father has little insight into the psychological or emotional dimensions of the children's development.
117Mr Cairns considered that the mother was intelligent, but passive and confused. She was particularly distressed about the father's characterisation of her as abusive, and genuinely wanted guidance about how she could better handle difficult situations in the future. According to Mr Cairns, her focus appeared to have been on the children and how the parties' problems could be addressed for their sake. She was also concerned that the father’s focus on academic achievement was resulting in Child A becoming arrogant while the girls, particularly Child C, were overlooked.
118The two older children, Child A and Child B, expressed views of the mother which were particularly negative. They seemed to believe that the mother did not love or care for them. In support of that belief, they referred to what they considered to be inadequate financial support provided by the mother to the father. They also suggested that the mother had tried to take them away from their father so as to hurt him: see p 6 of the first family report. Mr Cairns noted that Child A, in particular, appeared to reflect his father’s views and that he became upset when challenged about them. He concluded that the attitude of the two oldest children towards their mother was ‘aggressive and disdainful’, but that Child C was less consistent in her narratives and ‘arguably more honest.’ see p 6. Mr Cairns was of the opinion that the views expressed by Child A and Child B had been influenced and manipulated by the father.
119Child A and Child B were adamant that they wanted nothing to do with their mother, arguing that she did not love them. They expressed the firm view that it was better for them to remain with the father. Child C was less forthright, but said she felt ‘brilliant’ while living with her father: see p 24.
120Mr Cairns was clearly troubled by the behaviour of Child A and Child B towards the mother. He wrote at p 6:
[[Child A] and [Child B]] do not fear her but they clearly undermine her and refuse to accept anything she says as truthful. Indeed, they were so challenging of her in our shared session I stepped in and ask them to talk to their mother as they would any other adult. Such was their spitefulness towards her, in addition to [the mother's] clear inability to be able to assert herself, I felt I needed to protect [the mother] from emotional harm as some of [Child B] and [Child A's] comments were simply designed to be hurtful. In terms of an ongoing relationship they speak of her as someone who they just want possessions and money from, much the same as their father speaks of her. Both [Child B] and [Child A] seemed quite proud that they had walked away from her at the end of our visit without hugging her or saying goodbye, even though they had demanded possessions from her and argued they and their father should have the 'bigger' house she was in. They appeared to have little respect, empathy or value for [the mother] other than what she could provide them with that they believed they were 'owed'.
121Mr Cairns recorded that Child C appeared intimidated by her siblings.
122Mr Cairns was concerned by the children’s modelling of their father’s attitude. He wrote at p 7:
The children's attitude towards [the mother] is the same as [the father's] attitude towards her and their examples and conclusions are very much the same as his. This is concerning as [the father's] conclusions lead to pathologising of normal parenting and social interaction, usually to maintain his narrative of 'self as the superior and noble victim' or justify his demands and behaviour.
123That the father was frequently concerned with making himself appear as a victim was a point stressed in the first family report.
124Mr Cairns raised questions about the father’s capacity for empathy, and for putting matters in perspective. He noted that the father appeared to be regularly engaged in conflict – particularly with those he worked with – and was disdainful and undermining of those who disagreed with him. He considered the father to be ‘severely maladaptive’, going to extraordinary lengths to absolve himself of blame, undermine others and portray himself as the victim: see p 7.
125These troubling characteristics were at odds with the father’s attempts to present himself as a person who is both professional and courteous. In Mr Cairns' opinion, the father is incapable of sustaining such an image over an extended period of time. Eventually, the father's unwillingness to accept other people’s points of view, anger at being disagreed with and ‘inflated sense of entitlement’ is bound to appear: see p 10. Mr Cairns discussed numerous examples of the father’s verbal aggressiveness when challenged or, conversely, when placed in a position of power.
126Mr Cairns ultimately concluded that the father was ‘emotionally, socially and psychologically dysfunctional and, potentially, harmful’: see p 14. He added:
There are numerous examples of [the father] imposing what appears to be his highly self-serving, dysfunctional and aggressive interpretation and approach of the world onto the children. On some occasions the evidence is explicitly stated by [the father], who believes he is justified in his actions, on other occasions this can be seen in the children’s own accounts and behaviours, and the reports of others.
127Mr Cairns also noted that the father engenders a great deal of fear in the children, seeking to have them believe that he is the only one capable of protecting them: see p 19. He appears to have told them that they were at risk of homelessness because of the mother’s lack of financial support, that traditional schooling was harmful and that their mother wanted custody of them in order to hurt the father. In Mr Cairns' opinion, the father reinforced oppositional behaviour in the children. He also appeared to reward the children for sharing his world view.
128In his summation of the father, Mr Cairns wrote (at p 20):
I have significant concerns as to [the father]’s temperament, honesty and motivations. He is wedded to a narrative of himself that allows him to avoid the significant social and interpersonal problems he has and he requires the children to support and act in accord with those narratives. This is required partly due to the need to keep his self-image as superior and a victim alive and partly because whilst he has the children he has access to funds from [the mother] and can stay at home and out of the workplaces where his issues are so pronounced.
I would also add to my analysis that, from reports and discussions, it appears there is general consensus that [the father] is a vindictive man who will seek revenge if he feels someone has challenged him… This matches [the mother]’s belief that [the father] uses the children to hurt her whenever she does not comply with his wishes or give him what he wants. He appears to enjoy the power he has in this regard.
129Mr Cairns concluded that the children are at emotional and psychological risk in the care of the father: see p 21. He also concluded that the children’s long-term development is at significant risk from the father's maladaptive social and emotional behaviours, and that the father’s temperament places the children at short-term risk as well. He also felt that the father would not promote a relationship between the mother and the children and that he would go to considerable lengths to undermine her: see p 23.
130On the other hand, Mr Cairns was of the view that the mother would support a relationship between the father and the children, provided that she could see evidence that the father was no longer undermining her to the children and that he is not a threat to them.
131Mr Cairns recommended that the children should be withdrawn from the father’s care and that, for a period of two to three months, he have only supervised contact with them. He also recommended that the mother and all three children attend family therapy, describing this as 'a necessity': see p 27. Further recommendations were that protective measures should be put in place to prevent the father from threatening the mother and that the father should seek individual therapy.
132Mr Cairns concluded his report as follows (see p 29):
[The father] seems an intelligent man with some genuine talents, who unfortunately carries significant issues that make his and the lives of those around him difficult and dysfunctional to the point of harmful. I believe that his sense of entitlement and superiority, coupled with his belligerence and social deficiencies, have left him with little option other than to cope through a victim narrative and exploit others in accord with his beliefs of self-worth. His willingness to engage in punitive and manipulative behaviour may come from his own upbringing as he describes his father much like others describe [the father] himself – as belligerent, cold and vindictive [and as someone] who will not accept others challenging or disagreeing with him.… [The] indications that [the father] may be willing to seek vengeance upon those who challenge his highly subjective and self-serving narratives, exploitation and high need for control should be taken very seriously.
133As explained above, the immediate consequence of the publication of the first family report was that the children were removed from the father's care and placed in the care of the mother: see the two sets of orders made on 7 June 2013.
The second family report
134Mr Cairns prepared a second report in November 2013, after the children had been living with the mother for some time. The report is dated 26 November 2013. I shall refer to it as "the second family report".
135In the second family report, Mr Cairns again spoke to the children about their views in relation to their current living arrangements. Child C said that she was very happy living with her mother. Academically, Child C had made significant gains since being in the care of her mother.
136Child B also reported that she was happy living with her mother and noted that she was now aware that some of the things her father had told her about her mother were not true. She appeared to be far less aggressive, and was more positive about her mother. However, she appeared to be distressed at the prospect of not seeing her father – as a result of which, according to Mr Cairns, she made efforts to reinvent accounts of certain events to match her father’s version.
137Child A questioned his previous assertion that his mother was not capable of love:
[Child A] stated that his mother 'has changed'. He is still not sure he "likes her" but does question whether his previous belief that she was "not capable of love", as explained to him by his father, was accurate…
138Mr Cairns observed that Child A presented as much less aggressive than he had been in the previous interview and that he was far less dismissive of his sisters. Mr Cairns also observed that Child A was far more willing to hear other people’s perspective and did not challenge authority as much. He appeared to be more considerate and willing to accept alternative points of view. He also appeared to Mr Cairns to be in much better physical health. Indeed, Mr Cairns wrote at p 5:
The most notable changes in [Child A] were his physical health … and his greater levels of empathy.
139Mr Cairns concluded that the children had made significant gains while in the care of the mother and that their desire to live with their father was not due to any particular attachment but, instead, to the fact that he offered a less restrictive environment and would allow them the freedoms and responsibilities of adults.
140Mr Cairns considered that the children, particularly Child A and Child B, were still heavily influenced by the father’s norms and that this was problematic since the father continued to be negative in relation to the mother.
141He recommended that the children should remain in the full-time care of the mother. He wrote at p10:
… the evidence indicates that the children have done extremely well in [the mother's] care given the circumstances [in which] they were placed with her. Importantly, this time with their mother has allowed for uninfluenced observations to take place of [the mother] and her parenting and as such has allowed for testing of [the father's] claims. … It is difficult to even view [the father's] accounts as an exaggeration, as they appear so far removed from the evidence and observations of others and this must because for some concern. … There appears to be no shift in [the father's] thinking or willingness to reflect on his own behaviour and the harm it may have caused.
142Mr Cairns' recommendation regarding contact was as follows:
[The father] should have only supervised care of his children on a fortnightly basis for the next six months until the children have established a more stable set of social norms. After six months, time can be expanded in an orderly manner based on positive feedback from supervisors where [the father] has shown he can interact with the children in a pro-social fashion without undermining or denigrating [the mother]. It is essential these supervisors be independent of both parties.
Unsupervised access must be contingent on [the father] attending mediation and counselling with [the mother] and establishing communication processes and appropriate boundaries for comment and influence of the children. The counsellor in question must agree that [the father] has shown a willingness to work collaboratively and within the context of a functional co-parenting relationship.
143Mr Cairns concluded the second family report as follows:
The children should see their father under supervised conditions only, as outlined above. I would not recommend communication outside of that context at this time.
Overall, reports, interviews and observations indicate that the children have done well in [the mother's] care and better than expected, given the context. The gains noted in [Child A] and [Child C] are consistent with concerns raised about how their father's parenting had impacted on them. Furthermore, the children's own acceptance of their mother, and their well-being in general, stands in stark contrast to the view [the father] promoted and facilitated, [namely that the mother] was harmful, without emotion, exploitative and "not capable of love".
The Mother’s evidence
144The mother was a very impressive witness, who was willing to acknowledge her own failings and, at the same time, recognise the father's positive attributes. She is clearly an intelligent and fair-minded person. In the witness box, she was softly spoken and precise, although her answers to some questions demonstrated a very literal approach. She remained composed throughout the course of the trial, only becoming distressed when she spoke of the consequences of the Court's decision (on 9 May 2012) to remove the children from her care and place them in the sole care of the father, and when Ms Hughes apologised to her for having done her and the children a terrible disservice by writing the report that served as the catalyst for that decision. I accept the mother’s evidence as truthful and accurate and have no hesitation in preferring her evidence where it conflicts with that of the father.
145Ms Young submitted, and I accept, that the mother is a sensible person who is concerned primarily with the best interests of the children – although, at times, she has been distracted by irrelevant side issues.
146The mother traced much of the history of her relationship with the father, and of these proceedings, in her trial affidavit. I accept her evidence in that regard but do not intend to reproduce it in detail in these Reasons.
147The mother described her relationship with the father as one in which he maintained control and she was largely submissive to demands. She said, for example, that after the birth of Child B she did not want to fall pregnant again. At the time, she had just been promoted and the father had begun to discuss the possibility of relocating to Canberra, so she began to take the contraceptive pill. When the father found out that she was using contraceptives, the mother described the father as becoming angry with her and demanding that she stop. She acquiesced to this demand, the result being that the mother fell pregnant with Child C.
148She described the father as having an explosive temper, by which she meant that he lost his temper unexpectedly. She said that in the early days of the relationship she was afraid to discuss this subject with him. Later in the relationship, however, she did raise it with him, but never got the impression that he understood that his behaviour was inappropriate. He would occasionally lose his temper at the children.
149The mother spoke of the difficulties the father had experienced while employed in Canberra. When he had been working for the F Company for approximately six months, the father was investigated in relation to an alleged breach of the Code of Conduct. The allegation was subsequently substantiated. The incident appears to have occurred when the father became angry with a female member of staff who was booking flights for work-related travel. The staff member either made the wrong arrangements or misplaced the reservations that had been made. The father responded by hitting her with a small bundle of papers. During the investigation, the father was unable to work between August and December 2005. According to the mother, the father also had difficulties with his other colleagues: he believed that they had “ganged up” on him.
150Rather than have his employment terminated, the father decided to resign. According to the mother, he did so on the basis of informal advice the mother had received from a human resources officer at her workplace. The mother said that the father’s response to the incident was that the whole matter had been fabricated by the female member of staff and the father's boss.
151The mother's evidence was that the father also had some difficulties while he was working at N Company . While he seemed satisfied there (as far as the mother knew), he was highly critical of a colleague. Five months in to a 12 month contract, the father was informed that the contract would not be renewed.
152After looking for work for some six months, the father informed the mother that he was going back to Perth and taking the children. Initially she understood this move to be a temporary one, but the father made clear to her that he wished to separate from her and did not intend to return to Canberra. His proposal was that she should remain in Canberra in order to provide the family with an income. The mother was not prepared to be separated from the children. As a result, she decided to return to Perth with them – although she understood the marriage to be over.
153To her credit, and despite the clear difficulties in her relationship with the father, the mother was able to acknowledge that, prior to separation, the father was a loving and caring father. She described him as having a good sense of humour, and said that the children had fun with him. She added that he thinks of the children and what is best for them. The difficulty for the mother was that she perceived that the father had made it clear that he did not want her to be part of the children’s lives.
154Home schooling was an issue of grave concern for both parties. The mother said that the father began to agitate the issue of home schooling in August 2008, after the family had returned from Canberra. Initially, the mother was uncomfortable with the idea, but she eventually agreed to a trial period of six months. She signed a registration form to allow Child A to be home schooled. She made it clear that she was not under duress at that time, but that she nonetheless felt uncomfortable about the arrangement.
155After the parties separated, the father home schooled both Child A and Child B at various times. The mother did not wish the children to be home schooled, but felt powerless to do anything to prevent it. The mother said, and I accept, that her preference has always been for the children to attend mainstream schooling.
156The mother's relationship with the children had been good prior to the date of separation. When the couple separated for the final time and an equal shared care arrangement was put in place, however, the mother began to see worrying signs. The children questioned her inappropriately and became ill-mannered towards her and her parents.
157The mother said that her relationship with the children was poor when they returned to live with her after having been in the father's sole care. She said that the children were unwilling to show her affection, had no respect for her authority and had a bad opinion of her. She felt they were constantly watching and testing her. They would not allow her to correct their behaviour and Child A said things to her like “I don’t like you so I can be nasty to you.”
158The mother was of the view that the deterioration of her relationship with the children while they were in the father’s care resulted from the father's actions in undermining her authority as a mother, trying to sabotage her and telling the children that she was abusive. She considered that the children’s view of her was reflective of the father’s view and that he had taught them to dislike her.
159She was concerned that if the children were to have unsupervised contact with the father, they would once again be influenced by his opinion and that her relationship with them would suffer. She described herself as having “no hope” that the father would change.
160After the children were returned to the mother's care, her relationship with them improved. In the mother's opinion, the improvement in the relationship resulted from the effluxion of time, and persistence on her part. The mother has also had to reconsider her approach to discipline. While initially the children were resistant to the methods she adopted (which included better communication with the children and, where necessary, time out), their behaviour gradually improved.
161When the parties lived together, the mother would usually leave it to the father to discipline the children. The mother said, and I accept, that the father was not opposed to corporal punishment and that, on occasion, he would hit the children with a belt. The mother found this distressing, and once was so upset that she had to go into another room.
162It is clear, however, that the mother has found it difficult to discipline the children effectively. For example, she was cross-examined at length about her attempts to discipline Child C during the incident which resulted in Child A and Child B leaving the house and going to their father’s house (and, ultimately, in all three children being placed in the father's care).
163The mother said that she and the children had spent the day at Penguin Island and returned at approximately 5.00pm. Child C began to watch television and became angry when she was asked multiple times to turn off the television and get ready for bed. She began to scream and shout, so the mother took her into the yard and then, when the noise became worse, into the shed. Child C was required to stay in the shed until she was calm and prepared to apologise. The mother left Child C in the shed with her partner, Mr Carter. At some point, Child C tried to kick the mother. Mr Carter responded by smacking Child C on the leg. The mother denied the father’s allegations to the effect that Child C was left in the dark (although she conceded that the light in the shed was switched off accidentally for a very short time) and that Child C was repeatedly hit.
164Child C settled eventually, but in that time Child A and Child B had left the house. They went to the father, who was renting a property two or three streets away. The mother expressed the view that Child B and Child A did not go to their father’s home because they were afraid, but because they wanted to "tell on her".
165The mother then went to the father’s house, with Child C, to explain what had happened. When she arrived, the father took Child C from her, closed the door and informed her he was calling the police.
166The mother acknowledged that she handled the situation poorly and that, should something similar occur in the future, she would address it differently. The mother’s willingness to admit that she had made a mistake is commendable. I have no doubt that she has learned from the incident and that she will not allow it to be repeated.
167The mother also acknowledged that she did, as the father alleged, tell Child C that if she was wandering around her house at night "the ghosts might get her". She was later told by Departmental officers that such a comment was inappropriate "in Australia". The mother accepted this advice and has not repeated such a comment.
168The mother still lives with the children at Property S. The house is a five-bedroom, two-bathroom house. The mother’s parents live with her. The mother has also rented out three of the bedrooms to boarders. In all, there are six adults and three children living in the house. The mother and the children all share one room in which there are three beds; the mother’s evidence was that she sleeps with each of the two girls in turn. When she wishes to spend time with Mr Carter, she goes to his room downstairs. This is clearly an undesirable situation.
169Following the removal of the children from her care, on 12 May 2013, the mother had a breakdown. On that day she attended church, where there was some form of Mother’s Day celebration, and became distressed. She was taken by ambulance to Royal Perth Hospital, where she spent two weeks in the psychiatric unit. Although the mother was usually calm and focused during the giving of her evidence, she became upset as she described her distress at the allegations the children had made about her. The mother is currently not on any medication.
170While the mother was in hospital, the father left her a voicemail message to the effect that Child A was in hospital and had been diagnosed with Type 1 Diabetes. The mother then rang the father and asked if she could visit Child A, but the father refused to allow it. The mother's request to participate in the parents’ diabetes education program was also denied. After she was discharged from hospital, the mother made her own arrangements to attend the education program.
Practical difficulties and expense associated with contact
396This does not appear to be a relevant consideration. While the father claims to be impecunious, I note that he is in receipt of Government benefits, pays minimal child support and has his current accommodation provided to him rent-free. He is, moreover, an intelligent and apparently healthy man and there appears to be no reason why he could not find some suitable form of paid employment, irrespective of his past difficulties. I find that he has the capacity to meet the costs associated with supervised contact.
Capacity to provide for the children’s needs
397I find that the mother is clearly capable of providing for the children’s needs, including their emotional and intellectual needs. Ms Rigg and Mr Cairns both confirmed the mother’s ability to do so, as well as her preparedness to accept constructive criticism and then work to address the issues raised.
398I can make no such findings about the father despite his assertions that he is “a really good parent”. While he is intensely focused on the children’s academic achievements, he is less focused on their emotional and psychological needs. He demonstrates, in this respect, an almost breathtaking lack of empathy. He was unable, for example, to identify any distress that may be caused to Child C as a result of being placed in "time out" for making a mistake. Similarly, he had difficulty comprehending that Child B and Child C might prefer dancing to tae kwon do – simply because they preferred the former in spite of the fact that they were high achievers in the latter.
399His insight into what is appropriate for children is also lacking. A complaint raised by both Child A and Child B in discussion with Mr Cairns, and to a certain extent with Ms Rigg, was their mother’s failure to treat them as grown-ups, while the father, in his own words, treated them as “little adults”. He did so to the extent that he deemed it appropriate for the children to know details about the proceedings and for Child A to be made available to discuss financial affairs with the Child Support Agency. At the risk of stating the obvious, Child A, Child B and Child C are children – not "little adults". They should be protected from certain adult issues. Clearly and obviously, they should be safeguarded from attempts to cause them to become enmeshed in disputes between their parents. The mother is well aware of the children's needs in this regard but, regrettably, the father gave every indication that he is not.
400I find that, while in the father’s care, the children developed an abnormal set of social and behavioural norms. I accept that Child A (in particular) demonstrated a troubling sense of entitlement while he was in the father's care, and at other times as well. I also accept that Child A appeared arrogant at times. That this form of behaviour improved while in the mother’s care suggests that the father either accepted such behaviour or was incapable of recognising it.
401The father has also demonstrated an incapacity to deal properly with Child A’s diabetes. Despite receiving advice from medical professionals and dieticians at the Princess Margaret Hospital, the father disregarded their opinions and devised his own diet for Child A. He then placed all the children on this diet, which resulted in them losing weight to the extent that it was noticed and commented upon.
402While I conclude, therefore, that the father is capable of providing for the children’s intellectual needs, I find that he is not currently capable of providing for their emotional needs – one of which comprises the ability to have a positive relationship with the mother and her parents. It is to be hoped, however, that the father’s capacity to recognise and address these needs will improve in the future.
Maturity, lifestyle and background of the children and the parties
403The mother is from Vietnam. Her parents, who live with her and the children, speak very little English. I find that the father has been intolerant and unfairly critical of the Vietnamese people and culture; indeed, he refused to allow the children (who are, of course, half Vietnamese) to learn Vietnamese.
404The father is currently unemployed. I find that his work history reflects a marked lack of success in employed positions and an unwillingness or inability to cooperate with others and work as part of a team. I have not ignored Mr Mason's evidence in this regard – but, as noted above, the fact of the matter is that Mr Mason’s manager decided not to renew the father’s twelve-month contract of employment after only five months and that another person was brought in to do the job instead of the father. The father is a capable man in many respects, but his manner is such that it has been difficult for him to maintain employment.
405As I have indicated, I have some concerns about the environment in which the mother and the children are currently living. It is clearly undesirable for the mother and the three children to be sharing one room. Where there is facility for such to occur, the children should be able to sleep in separate bedrooms – and the two girls should certainly not have to share a bed with their mother. Property S could comfortably accommodate the mother's parents, the mother and the children were it not for the presence of boarders. I note the comment made in closing by Ms Young that the mother was seeking to address this issue. In my opinion, this should occur as quickly as possible.
406Both the mother and the father are intelligent. In my opinion, however, the mother is significantly more mature than the father – not least because of her openness, honesty, insight, capacity to behave in a child-focused manner and willingness to learn and adapt. The mother clearly takes on board criticisms that are made or concerns that are raised, and does her best to deal with them. She is aware that she is not always right and is prepared to take steps to correct mistakes. By way of contrast, the father is unwilling or unable to adapt or change, and appears incapable of recognising or acknowledging his own mistakes. He insisted – throughout the proceedings – that he was a very good parent and that there was no need for him to change in any way.
Aboriginal or Torres Strait Islander children
407This is not a relevant consideration.
Attitude to the children and to responsibilities of parenthood
408I am satisfied that the mother has demonstrated a positive and constructive attitude to the responsibilities of parenthood. She has done her best to provide the children with a stable and nurturing environment, and she has done this in the face of the children’s antagonism towards her.
409The father’s attitude to the responsibilities and duties of parenthood is more complex. Although he has sought to be actively involved in the children’s lives and has been intensely focused on their educational achievements, he has all but ignored their emotional and psychological welfare. His attitude appears to be that these areas are of less significance than academic results; an attitude which can hardly be described as conducive to the bests interests of these children.
410Moreover, the father’s denigration of the mother and, I find, wilful attempts to alienate the children from her demonstrates a fundamental rejection of the responsibility of a parent to nurture and support the emotional health of his or her children. He has attempted to convince his children that the mother is incapable of loving them and that she has placed the furtherance of her career ahead of their welfare. Any attempt on the children's part to assimilate such a view would have had a profound impact on their psychological health, and that the father could find it within himself to actively encourage that view is troubling in the extreme.
411I do not propose to repeat matters discussed elsewhere in these Reasons. Suffice it to say that I am not satisfied that the father has displayed a positive and constructive attitude to the responsibilities and duties of parenthood. It is not unfair to describe his attitude to these matters as negative and combative – at least where the mother is concerned.
Family Violence
412As outlined earlier in these Reasons, the father has said that the mother was physically abusive towards the children on a number of occasions and that she allowed her father and her partner to physically discipline the children in an inappropriate manner. In particular he referred to the shed incident (for want of a better description).
413I do not propose to repeat my reservations regarding the mother's methods of disciplining the children. In my opinion, those methods do not fall comfortably within the definition of family violence.
Orders least likely to lead to the institution of further proceedings
414In my opinion, it is clear that, if the orders to be made are not in accordance with the father's wishes, he will feel himself to have been wronged; this Court will be added to the list of those people who or entities that have misunderstood the father and done him an injustice. To a certain extent, therefore, any order that is not agreed to by the father may lead to the institution of further proceedings.
415It is also clear, however, that the orders the father seeks would cause the children to be further alienated from the mother. I am conscious of the comment made by Mr Cairns to the effect that, if the father is permitted to continue to behave in the manner he has done thus far, the children may in time come to reject their mother and, as it were, “vote with their feet”.
416I am satisfied that the orders made on 25 August 2014 are in the best interests of Child A, Child B and Child C. I have no doubt that that the mother will be reasonable and fair in her assessment of the father and his attitude towards cooperative parenting, but if she is not, then the father has an opportunity to vary the orders.
417I accept that the orders sought by the mother are unusual and that they place on her a great deal of responsibility for ensuring that the children continue to have safe, non-threatening and meaningful contact with the father. As is apparent from these Reasons, however, the mother is a highly motivated, positive and resilient person who is clearly and unambiguously supportive of the children having such contact with the father. She argued that she knows the father better than any of the witnesses who gave evidence in the proceedings (including the professional witnesses) and that the Court should trust her to make arrangements that are consistent with the children's best interests – in spite of the father's antagonism towards her. Notwithstanding the barrage of criticism directed to the mother by the father, I am unable to identify a plausible reason for not trusting the mother in this regard. Indeed, I am firmly of the opinion that the role the mother proposes for herself is a suitable one in the unusual circumstances of this case.
Any other fact or circumstance that the Court thinks is relevant
418There are no other facts or circumstances that I consider relevant. I have already indicated that the father's character and personality dominated much of the proceedings. Regrettably, he saw fit to undermine the children's relationship with the mother, and he did so without justification. At the same time, he demonised the mother and encouraged the children, directly or indirectly, to dislike her, to treat her with disrespect and to reject her as a person and as a parent. I do not accept for one moment that he genuinely believes that he was acting in the best interests of the children – but if he does, and if he genuinely believes that he has been "a really good parent", then the Court is entitled to have grave concerns about his capacity to modify his behaviour in the future.
419To her credit, the mother retains some degree of optimism regarding the father's capacity to change. She has urged the Court to place its trust in her and to allow her to reach own conclusions as to whether the father has begun to gain insight and to work cooperatively with her for the benefit of the children. Unusually in proceedings of this nature, I can record that the Court does indeed trust the mother to promote a close and loving relationship between the children and their father and that the Court has no discomfort with the mother's proposed approach to that task. The Court is heartened in this regard by the fact that the ICL also fully supports the mother's approach.
420As foreshadowed above, and having dealt with those considerations pursuant to s 60CC(3) that I consider relevant, I shall now revisit the considerations referred to in s 60CC(2). Once again, I remind myself that I must regard the children’s best interests as the paramount consideration in these proceedings – and that it is for the purpose of determining which proposals are in their best interests that I must consider these matters.
Meaningful relationship
421It is not in dispute that the children have a close and loving relationship with the father. For the children, this relationship is meaningful in every sense and, clearly, the children appear to miss seeing their father.
422There can be no doubt that the relationship between the mother and the children was damaged as a result of the father's attitude and actions. Since they have returned to her care, however, the relationship has improved – although I accept there is still work to be done in relation to the mother’s relationship with Child A.
423It is the mother’s concern that, should the children resume unsupervised contact with the father, her relationship with them will be subjected to the same pressures as it was previously. I consider that the mother's concern in this regard is justified.
424I am satisfied that the mother is prepared to cooperate in maintaining a close and loving relationship between the children and the father, provided it does not come at the detriment of her own relationship with them. As such, she is prepared to facilitate supervised time between the father and the children until the father can demonstrate that he will no longer denigrate her to the children. While supervised contact will make the relationship between the father and the children different, this does not mean it cannot be optimal – and it certainly does not mean that it cannot be "meaningful".
Protection from harm
425I have discussed the risk of the father continuing to set the children against the mother and, in the process, distancing them from her. Aside from that very real risk, the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence is not a relevant consideration in the circumstances of this case.
Parental responsibility, equal time and substantial and significant time
426As indicated above, the court must apply a presumption that it is in the children’s best interests for their parents to have equal shared parental responsibility. The presumption relating to equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent (or somebody living with a parent) has abused the children (or another relevant child), or has engaged in family violence.
427As discussed under the heading Parenting Orders above, I am required to consider whether the children spending equal time with the mother and the father would be in their best interests (and related questions) and, in turn, whether the children spending substantial and significant time with the mother and the father would be in their best interests (and related questions). In this case, I have found that it is not in the best interests of the children for the mother and the father to have equal shared parental responsibility.
428In Oscar and Traynor (2008) FamCA 95, Murphy J. said at [260]:
It seems to me that the greater the degree of mistrust, lack of communication, disrespect and dysfunction in the co-parenting relationship, the greater the indication that an attempt for those parents to equally share the responsibilities (and, importantly, actively carry them out) is unlikely to be in the children's best interests.
429Leaving aside issues of the applicability of presumptions and their rebuttal, there has existed between these parties –
a)significant entrenched conflict in regard to what is considered to be in the best interests of the children's day to day and long-term needs;
b)significant conflict over the children's educational and medical needs;
c)no, no effective or very poor communication between the parents;
d)a level of antipathy, suspicion and mistrust displayed by the father towards the mother;
e)entrenched positions or polarised views on the father's part; and
f)little willingness on the father's part to effect change in parental dynamics.
430In those circumstances, I am not satisfied that any form of shared parental responsibility arrangement could work effectively in the children's best interests.
431I have also found that it is not in the best interests of the children for them to spend equal time, at this stage, with each of the parents. I am not satisfied that such an arrangement could work. The parent’s relationship has been described elsewhere in these Reasons and it seems apparent that, as matters currently stand, they are unable to communicate and that the father frequently denigrates the mother.
432In my opinion, the making of an order for equal shared parental responsibility would not only create an opportunity for there to be further friction in the relationship between the mother and the father, but it would also provide the father with an opportunity to continue to set the children against the mother and distance them from her.
433I have no doubt that the mother will make appropriate decisions for the children in relation to major long-term issues.
Conclusion
434I have borne firmly in mind, throughout my consideration of the parties’ competing applications, the various factors and considerations referred to under the heading of "Parenting Orders" above. I have also borne in mind the other legislative provisions or authorities referred to in these Reasons. I have imposed no legal or other onus on any party, and have applied no presumptions of any sort (beyond those that the law requires me to consider and apply). I have deduced from the evidence, and from my assessment of the parties and the witnesses, the essence of the competing proposals ─ and I decide, having considered all the factors that I believe to be relevant, that the orders that I made on 24 August 2014 are those that are most likely to advance the children's best interests (which, after all, comprise the paramount consideration in these proceedings).
Orders
(1)In these orders and notations:
(a)"the children" means CHILD A born [in] April 2002, CHILD B born [in] December 2003 and CHILD C born [in] May 2005;
(b)references to "the children" shall be interpreted as including each child, and in that sense the plural number includes the singular;
(c)"the Expert" means Darin Cairns, Clinical Psychologist, or such other psychiatrist, psychologist or counsellor as shall be nominated by the mother;
(d)"the Consultation Program" means advice, assistance, therapy, counselling and guidance to be obtained by and provided to the father with respect to issues associated with:
(i)the father's approach to parenting (including the need to provide the children with a supportive and coherent framework to develop their relationships with both parents);
(ii)pro-social collaborative ways for the father to cooperate with the mother in parenting the children;
(iii)the father's unwillingness or inability to recognise and identify with the feelings and needs of others (including the mother and the children);
(iv)the father's unwillingness or inability to acknowledge and accept responsibility for his denigration of the mother to the children;
(v)ensuring, to the greatest extent possible, that the father's denigration of the mother to the children will not recur in any form;
(vi)all personality or mental health issues raised in, referred to or necessarily to be inferred from the reports prepared by Mr Cairns, the single expert in these proceedings; and
(vii)such other aspects of the father's behaviour or attitudes as the Expert deems appropriate;
(e)"the contact centre" means the Relationships Australia Child Contact Centre in Fremantle (or such other contact centre as shall be nominated by the mother); and
(f)"school" means a place at or from which education is provided to children of compulsory school age by qualified teachers during normal school hours, but does not include a place at which home schooling or any form of home education or tuition takes place.
(2)All previous parenting orders be discharged.
(3)The mother have sole parental responsibility for the children.
(4)The children live with the mother.
(5)Subject to paragraph 9 below, and subject to the availability of the contact centre, the father spend strictly supervised time with the children at the contact centre on a fortnightly basis for approximately 2 to 3 hours at times to be agreed with the contact centre ("the supervised contact").
(6)Each party must –
(a)telephone the contact centre as soon as practicable to arrange an appointment for an intake interview (if such interview has not already occurred);
(b)attend the intake interview at the arranged time (if such interview has not already occurred);
(c)attend any appointments arranged by the contact centre;
(d)comply with the rules of the contact centre;
(e)comply with all reasonable requests or directions of the staff of the contact centre; and
(f)provide a copy of these orders to the contact centre.
(7)The period of supervised contact provided for in these orders may vary by reason of the closure of the contact centre's services during school and public holiday periods, and in such event supervised contact is to occur at times when the relevant services can be provided by the contact centre.
(8)The father must pay all costs of and incidental to the supervised contact in accordance with the rules and requirements of the contact centre, and as and when such costs fall due.
(9)The mother have liberty to suspend or terminate the supervised contact – at her sole discretion – on 7 days’ notice to the father (such notice to be provided to the father by email or SMS text message), and thereafter the father spend time with and communicate with the children –
(a)as agreed between the parties from time to time in writing; or
(b)in the event of disagreement, as proposed by the mother (which proposal may include a further period or further periods of supervised contact).
(10)The father must –
(a)attend upon and consult with the Expert for the Consultation Program;
(b)continue to attend upon and consult with the Expert throughout the Consultation Program, and for such period as the Expert shall consider appropriate;
(c)comply with all directions given and requests made by the Expert throughout the Consultation Program;
(d)authorise the Expert to report to and discuss with the mother all aspects of the Consultation Program (including, but not limited to, the father's comments, behaviour and attitude during the Consultation Program and at other times); and
(e)pay all costs of and incidental to the Consultation Program (including the costs of and incidental to the reporting process referred to in (d) above) as and when they full due.
(11)Both parties have liberty to provide the Expert with such information and documents as they shall consider appropriate, including (but not limited to) Mr Cairns' single expert reports prepared for the purposes of these proceedings, affidavits filed in these proceedings, reports and other documents tendered as exhibits during the course of the trial and the Reasons for Judgment of the trial judge.
(12)The Consultation Program shall be fully reportable to any court exercising jurisdiction under the Family Law Act 1975 and, for the sake of clarification, the Consultation Program and any counselling within it is deemed not to comprise either family counselling within the meaning and contemplation of that term in Division 2 of Part II of the Family Law Act 1975 or family dispute resolution within the meaning and contemplation of that term in Division 3 of Part II of the Family Law Act 1975.
(13)Unless otherwise specifically provided for in these orders or otherwise agreed between the parties from time to time in writing, the father, his servants and agents be and are hereby restrained by injunction from :
(a)approaching within 100 metres of the children;
(b)contacting or communicating with the children in any manner whatsoever, including (but not limited to) by mail, telephone, SMS text message, email, Facebook, Twitter or other social media or networking site or service;
(c)attending at the children's school or schools and/or the grounds of that school or those schools and/or any other venue regularly attended by the children;
(d)approaching within 100 metres of the mother;
(e)attending at the mother's home and/or place of employment and/or any other venue regularly attended by the mother;
(f)home schooling the children, or otherwise providing the children with home tuition – save that the father shall be permitted to assist the children with homework, projects or assignments set for the children by the children's school or schools; and
(g)causing or permitting the children to fail or refuse to attend school (being the school or schools in which they have been enrolled by the mother) for any part of a school day.
(14)The mother must:
(a)Advise the father immediately in the event that the children suffer any serious illness or injury; and
(b)authorise any school attended by the children from time to time to provide to the father, at the expense of the father, copies of all school reports, school notices or newsletters and school photographs relating to the children.
(15)In the event of the father spending time with the children pursuant to these orders, the father must –
(a)ensure that the children attend school (being the school or schools in which they have been enrolled by the mother) for the whole of each school day;
(b)advise the mother immediately in the event that the children suffer any serious illness or injury;
(c)provide the mother with the name and address of any health care professional or health facility attended by the children as a result of such serious illness or injury; and
(d)authorise such health care professional or health facility to provide to the mother any information requested by her relating to the health of the children.
(16)Each party must keep the other party advised of his/her residential address, email address and mobile telephone number at all times, and must forthwith advise the other party of any change in such details.
(17)The father and his servants and agents be and are hereby restrained by injunction from physically disciplining the children.
(18)The mother and her servants and agents be and are hereby restrained by injunction from physically disciplining the children.
(19)The father, his servants and agents be and are hereby restrained by injunction from:
(a)criticising, abusing, insulting, belittling, rebuking or otherwise denigrating the mother; and
(b)discussing these proceedings,
to, with, or in the presence or hearing of the children, and from permitting any other person to do so.
(20)The mother, her servants and agents be and are hereby restrained by injunction from:
(a)criticising, abusing, insulting, belittling, rebuking or otherwise denigrating the father; and
(b)discussing these proceedings,
to, with, or in the presence or hearing of the children, and from permitting any other person to do so.
(21)The mother be at liberty to provide a copy of these orders to all or any of the following:
(a)the principal or delegate of the principal of the school or schools attended by the children from time to time;
(b)all medical practitioners and/or allied health professionals attending upon the children from time to time;
(c)all counsellors of the children from time to time; and
(d)the Expert.
(22)The Principal Registrar and the Registry of the Family Court of Western Australia cause the children's passports to be delivered up to the mother forthwith.
(23)All extant applications otherwise be dismissed.
(24)The mother and the independent children's lawyer have liberty to apply for an order for costs on 21 days’ notice, in writing, to the father – and any such application shall (notwithstanding any rules, directions or practice guidelines to the contrary) be by way of a Form 2 application in a case.
(25)Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create, and the particulars of the consequences that may follow if a person contravenes these orders, are set out in the attachment, and these particulars are included in these orders.
AND THE COURT NOTES THAT:
(26)Without limiting the mother's discretion as envisaged in paragraph 9 above (including the mother's discretion as envisaged in paragraph 9(b) above), the mother will consider whether the father should commence spending unsupervised time with the children after all the following conditions have been met:
(a)the father has completed a minimum of 10 supervised contact periods at the contact centre;
(b)the father has participated in the Consultation Program, and has cooperated with the Expert in relation to all relevant aspects of the Consultation Program; and
(c)the Expert has provided to the mother a written recommendation to the effect that unsupervised contact or time should commence; and
(d)the mother has had the opportunity to discuss the Expert's written recommendation with the Expert.
(27)Notwithstanding paragraph 26 above –
(a)the father's compliance with all of the conditions set out in the said paragraph, together with
(b)the mother's failure or refusal to agree to the father having unsupervised contact with the children for a continuous period of 12 months after the father's compliance with all of the said conditions,
shall be deemed to demonstrate "changed circumstances" sufficient to justify the Court reconsidering the spend time and communication arrangements between the father and the children as set out in these orders.
I certify that the preceding [434] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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5
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