FLETCHER and STEVENSON
[2018] FCWA 220
•9 NOVEMBER 2018
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: FLETCHER and STEVENSON [2018] FCWA 220
CORAM: DUNCANSON J
HEARD: 26 SEPTEMBER 2018
DELIVERED : 9 NOVEMBER 2018
FILE NO/S: PTW 4237 of 2013
BETWEEN: MR FLETCHER
Applicant
AND
MS STEVENSON
Respondent
Catchwords:
CHILDREN - Parenting issues - Case turns on its own facts
Legislation:
Family Law Act 1975 (Cth) s 60B, s 60CA, s 60CC
Category: Reportable
Representation:
Counsel:
| Applicant | : | Self-Represented Litigant |
| Respondent | : | Ms S Thomson |
Solicitors:
| Applicant | : | Self-Represented Litigant |
| Respondent | : | Thomson Family Lawyers |
Case(s) referred to in decision(s):
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
1[Mr Fletcher], the father and [Ms Stevenson], the mother are the parents of [Child A], [Child B] and [Child C] who are aged 12, 11 and nine years respectively.
2The parties are unable to agree about parenting issues concerning the children.
3The parties have a conflictual relationship. The children have been exposed to that conflict and affected by it.
BACKGROUND AND SHORT HISTORY
4The father is 38 years of age. He is [a] [carpenter]. The mother is 37 years of age. She is a [sales assistant]. The parties commenced cohabitation in 1999. They married [in] 2006. The parties separated finally in 2011.
5Child A was born [in] 2006. Child B was born [in] 2007. Child C was born [in] 2009.
6After the parties separated the children lived with the mother and spent time with the father by way of an informal arrangement between the parties.
7In February 2012, the mother obtained an interim Violence Restraining Order against the father. This was settled by way of undertaking on 1 August 2013 for a period of one year. The children continued to spend time with the father.
8The mother said there were many incidents at handovers in which the father became agitated, shouted and swore.
9On 22 August 2015, an incident occurred involving Child C. As a consequence, the mother obtained a further interim VRO protecting the children.
10These proceedings commenced when the father filed an initiating application on 9 November 2015.
11On 9 December 2015, orders were made by consent providing that the children live with the mother and spend time with the father, every alternate weekend from after school Friday until before school on Monday, or Tuesday if Monday is a public holiday.
12The parties attended a Case Assessment Conference with Family Consultant Bowles on 24 February 2016. The Family Consultant reported that the father was of the view that there was no family violence during the parties' relationship. The Family Consultant also reported that the mother spoke of significant violence during the relationship including physical, emotional, financial and verbal violence and violence of a sexual nature. The mother told the Family Consultant that the children were exposed to the family violence.
13In about April 2016, Child A and Child C refused to spend time with the father.
14On 10 April 2016, the father telephoned the mother and breached the VRO. The father was convicted and fined.
15On 12 May 2016, the VRO was finalised by way of undertaking.
16On 17 August 2016, [Mr D], Clinical Psychologist was appointed Single Expert Witness. Mr D published his report dated 16 January 2017.
17In accordance with Mr D's recommendation, Child A and Child C resumed spending time with the father in February 2017. All of the children have continued to spend time with the father pursuant to the December 2015 orders.
18The parties attended a Case Assessment Conference with the Family Consultant on 16 February 2017. The Family Consultant reported it was encouraging that the parties were able to negotiate time for all three children to spend with the father. Notwithstanding that, she was of the view that the dynamic and communication between the parties had not improved and their views had created a distrusting relationship, which had negatively impacted upon the children.
19The parties attended a Child Dispute Conference with the Family Consultant on 13 December 2017.
20The Family Consultant reported the father was agitated at the interview. The Father was of the view that the mother breached Court orders and had made false allegations against him.
21The Family Consultant reported that the mother claimed the father continued to use aggressive tactics and intimidating behaviour in his negotiations with her.
22The Family Consultant reported her concern that the children continued to witness a hostile and prolonged parental dispute, with communication between the parties appearing to deteriorate further.
23The parties agreed the children's time with the father at Christmas 2017 and they agreed the handover arrangements.
24The Family Consultant reported that the agreed handover arrangement had the potential to minimise conflict at a time when hostilities were high, however as a long-term option it was preferable for handover to occur at the parties' homes, provided the parties could communicate in a civil way.
25On 19 December 2017, orders were made providing for the children to spend time with the father at Christmas 2017 and for that purpose, handover take place on the corner of [Street A] and [Street B] in [Suburb A]. It was ordered that the mother or her partner [Mr A] stand at the front of the mother's property, the father remain on the corner of Street A and Street B, and the children walk to the mother's property or to the father.
26The children continue to spend time with the father in accordance with the December 2015 orders. Handover continues to take place at the corner of Street A and Street B.
27The mother's position is that there remains significant conflict between the parties. The father says there is little or no conflict between them.
THE PARTIES' EVIDENCE
28Both parties endeavoured to give truthful evidence, but both did so from their own perspectives.
29To the parties' credit, they were able to agree a number of parenting orders. Both felt strongly about the issues which remained in dispute.
30The father was very direct and he was critical of the mother for what he perceived as her denying the children the opportunities to spend time with him.
31The mother has been subjected to family violence at the hands of the father. She said and I accept, there is still conflict between the parties to which the children are exposed. She said the father lacks respect, makes rude comments and is uncompromising. She said he denigrates her and her partner to the children. The father said the mother alienates the children from him.
32Individually, both parties are good parents, and each want what they see as best for the children.
33The father wanted to rely on Mr D's report, but Mr D was not called as a witness.
34Mr D reported that the children's behaviour had been significantly impacted upon by the distrusting relationship between the parties and how they behave. Mr D reported that Child C and Child A were at high risk of being alienated from the father by reason of being influenced by the mother's beliefs, perceptions and "attitude of the father". The mother took issue with aspects of his report.
35At the time of Mr D's report, Child A and Child C were not spending time with the father. Mr D recommended the reunification of Child A and Child C with the father. That subsequently occurred in early 2017.
36There has therefore been a significant change in the children's circumstances as they existed at the time Mr D prepared his report. He was not asked to provide an updated report.
37An issue which arose from Mr D's report, which was the subject of evidence at trial, was his recommendation that the mother receive individual therapy or counselling and/or joint therapy and counselling with her partner, Mr A. Mr D recommended [Ms C], Psychologist as a person experienced in these matters. He recommended the father have counselling with Ms C, as well as the children. I refer to this further below.
THE LAW
38These proceedings are determined under Part VII of the Family Law Act1975 (Cth) ("the Act").
39In reaching my decision I will be guided by the objects of that Part and the principles underlying those objects.
40Section 60B sets out the objects and the principles underlying them. The objects are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
41In deciding whether to make a particular parenting order, s 60CA directs me to regard the best interests of the child as the paramount consideration. Section 60CC sets out how I determine what is in a child's best interests. I must consider the primary considerations and the additional considerations.
PARENTAL RESPONSIBILITY
42The parties agree that they should have equal shared parental responsibility for the children. I am satisfied that such an order is in the best interests of the children.
43Equal shared parental responsibility imposes an obligation upon the parties to consult as to major long-term issues regarding the children and to make a genuine effort to come to a joint decision about such an issue. Major long-term issues are issues about the care, welfare and development of the children of a long-term nature including issues about their education (both current and future), religious and cultural upbringing, health, their names and changes to their living arrangements that make it significantly more difficult for them to spend time with a parent.
THE ORDERS SOUGHT
44The orders sought by the father are contained in a Minute of Final Orders Sought filed 6 March 2018. The orders sought by the mother are contained in her Papers for the Judge filed 20 September 2018.
THE ISSUES IN DISPUTE
45The parenting issues in dispute include those relating to the children's living and spend time arrangements, Child A’s views, attendance at extracurricular activities, handovers, therapy and telephone communication.
The living and spend time arrangements
46The father seeks an order that the children spend additional time with him every Wednesday afternoon from after school until 7.00 pm. The mother proposes that the children spend additional time with the father every alternate week, either by remaining in his care until 7.00 pm on the Monday of the weekend they spend with him, or alternatively every alternate Thursday from after school until 7.00 pm.
47Currently, the children live with the mother and spend time with the father pursuant to the December 2015 orders. That is, every alternate weekend from 3.00 pm on Friday when the father collects the children from school, until 8.30 am on Monday when the father delivers the children to school or 8.30 am on Tuesday, if Monday is a public holiday.
48The father said the mother denies him the opportunity of spending time with the children, but leaves them in the care of others. In terms of his roster, he is available to care for them. The father said Wednesday is the appropriate day in each week as this will ensure that the gap between visits is not greater than seven days. The father is also concerned about the children's educational progress, in particular that of Child B, and will be able to assist them with their school work in these afternoons.
49The mother said Wednesday does not suit her because that is a day she does not work and is able to spend time with the children. She suggested that the children have additional time with the father on the Monday afternoon that they spend with him, but this does not suit the father's roster. She proposes that the additional time occur either on the Tuesday or Thursday each alternate week, but not every week. She said the father has declined additional time in the past. The mother also said what he seeks does not accord with the children's wishes. Further, it will increase the number of handovers and thus the potential for conflict.
Child A’s views
50The mother seeks an order that the time Child A spends with the father be in accordance with her wishes. The father opposes this order.
51The mother is not confident that the father will listen to Child A. The father assured the Court that he will, but is of the view that Child A is too young to determine, or have the choice as to, her living arrangements. Child A will be 13 years of age in 2019.
Attendance at extracurricular activities
52The father seeks an order that both parties be at liberty to attend the children's extracurricular or sporting activities and that in the event a parent is unable to take a child, or the children, to such an activity the other parent be given first option to do so. The mother opposes the order sought by the father. The mother seeks an order that the parties be restrained by injunction from attending the children's extracurricular or sporting activities at times when the children are not in their respective care, except with the prior consent of the other party, or in the event of a grand final or special one-off event.
53The father wants to attend the children's extracurricular activities even when they occur when the children are living with the mother. He does not want his attendance in her time to be restricted to special events or grand finals and wishes to routinely attend those activities. He denies this would give rise to conflict between the parties, and says there are times when the mother is not at a particular sporting event and Mr A attends with the children instead.
54The mother explained that there may be a short period of time where one child's activity overlaps with another's, but otherwise she attends their activities. She does not want the father to attend activities or events which occur when the children are living with her as she says this will give rise to further conflict to which the children are exposed. She does not want to come into contact with the father.
55Similarly, the mother is opposed to giving the father the first option of taking the children to a sporting event, if she is unable to do so and says that the parties should attend the events which occur at times when the children are living with each of them.
Handovers
56The parties agree that handovers are to occur at school. In the event they do not occur at school, then the father seeks an order that the parent commencing time with the children collect the children from the home of the other parent. In that way, the parties share equally the travel arrangements.
57The mother seeks an order that when handovers do not take place at school, they occur at the corner of Street A and Street B in Suburb A, with the father to deliver the children there and the children to walk to the mother's home. As an alternative, the mother proposes that the father's partner, [Ms L], collect the children from and deliver them to her home. She seeks an order that the father be restrained from attending her residence.
58The parties agreed that handover would take place on the corner of Street A and Street B for the purpose of handover in December 2017 and January 2018. They have continued to implement that arrangement. The mother does not want the father to come to her home. She does not want to attend his home. There has been family violence between the parties. If the parties come into contact, there is likely to be conflict to which the children may be exposed. The mother remains in a relationship with Mr A, but he no longer lives at her house.
59The current arrangement involves the children alighting from the father's vehicle with their belongings, often including a scooter and their backpacks. While in the view of the mother, the children then walk to her house. The father says this sends a poor message to the children and that it would be in their best interests that handovers take place at each party's home.
60There is a difficulty when it gets dark and the children have to walk a short distance in the dark with their belongings. Although they are in the view of the mother and the father at the time, it is an arrangement which is not ideal in the long-term. The mother is prepared to have handover effected by Ms L. She does not propose that Mr A effect handover on her behalf.
Extra time
61The father wants to be given the first option of looking after the children if the mother is unable to do so personally. The mother is not opposed to this in principle if she is away, for example, for about four or five days at a time. She says anything less than that would be disruptive to the children and not in accordance with their wishes. The father is concerned that the mother prioritises the relationship between the children and other persons over their relationship with him.
Therapy
62The father seeks an order that the mother and Mr A attend upon Ms C for therapy as recommended by Mr D. The mother is not opposed to attending for therapy. She seeks to have the father meet the cost, however the father is prepared to meet only half the cost. The mother says she is unable to afford to pay for therapy. The father has a surplus of funds each week and the mother suggests that he pay for it.
63Mr D's report was prepared at a time when the children were not spending time with the father. The circumstances are now very different. The children have previously had some counselling. They have the opportunity to speak to a school chaplain if they wish. An alternative option proposed by the mother is that the children have counselling with Anglicare as and when needed.
Telephone communication
64The parties agree that the children will have telephone communication with the father once each week at 7.00 pm. They do not agree on the day on which this is to occur, because it depends on the additional mid-week time that the children spend with the father.
THE PRIMARY CONSIDERATIONS
the benefit to the child of having a meaningful relationship with both of the child's parents
65Child A, Child B and Child C have a meaningful relationship with both of their parents and it is to their benefit that it continues.
the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
66There is now not a need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence in the care of either party. I refer below to the parties' conflict and to the impact it has had upon the children.
THE ADDITIONAL CONSIDERATIONS
any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views
67There is no independent evidence as to the children's current views. At times, Child A has not wanted to spend time with the father in accordance with the orders. It is important that he listens to her and is receptive to her views.
the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child)
68The children have a close and loving relationship with both of their parents. For a period of time the relationships of Child A and Child C with the father were fractured, but these have been restored. The children also have good relationships with their parents' partners, Ms L and Mr A.
the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child
69Both parties have taken the opportunity to participate in making decisions about major long-term issues in relation to the children. Both have taken the opportunity to spend time with them and to communicate with them.
the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child
70Both parties have fulfilled their obligations to maintain the children.
the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
71The parties agree that the children will live with the mother and spend time with the father every alternate weekend. It is also agreed that the children will spend time with the father in the school holidays. What is not agreed is whether the children should spend additional time with the father on either one or two afternoons each fortnight.
72Neither party proposes a significant change in the children's circumstances such that they would be separated from either parent, or any other person with whom they have been living. The issue between them is limited to additional time of a few hours each week or fortnight.
the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis
73The parties live very close to each other. The practical difficulty arises because they are unable to agree as to the arrangements for handover. In considering orders in this respect, I shall bear in mind the need to minimise conflict and at the same time ensure that the arrangements are those which are in the best interests of the children.
the capacity of:
(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
74Both parties are capable of providing for the needs of Child A, Child B and Child C. The father expressed concern about Child B’s educational progress and wishes the children to spend additional time with him each week to enable him to assist in that respect.
75The parties have not provided well for the children's emotional needs when they have exposed them to conflict. This conflict has impacted upon the children. Child A and Child C suffer from anxiety. On occasions, Child A has asked the mother to collect her from the father's home. I do not accept the father's contention that there is no conflict between the parties. Although well-meaning, he can be forceful and abrasive and he has been confrontational with respect to the mother's partner.
76The best outcome for the children would be to see both parents acting cooperatively. The mother shows insight into the need for this. The father does so but to a lesser extent.
the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant
77Child A, Child B and Child C are aged 12, 11 and nine years respectively.
if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right
78This consideration is not relevant.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
79Both parties have demonstrated a responsible attitude to the children and to the responsibilities of parenthood except when the children have been exposed to their conflict.
80Both parties encourage the children's relationship with the other parent to the extent that they are able. It is possible that the mother has not always been able to do so in the past and the children have been influenced by her views of the father. That is not the case now. The children enjoy a good relationship with the father, which indicates that the mother has not undermined it. I bear that in mind when considering whether there is a need for the mother to undertake therapy.
81Both parties seek defined Court orders in relation to the children's arrangements, to give them certainty. The mother is somewhat pessimistic that the father will comply with Court orders. It will be necessary for both parties to do so.
any family violence involving the child or a member of the child's family
82There has been family violence involving the parties to which the children have been exposed.
if a family violence order applies, or has applied, to the child or a member of the child's family—any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter
83There is no family violence order currently in place.
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
84It is desirable to make final orders and conclude these proceedings. Finality would be of assistance to both parties and in the best interests of the children, as it has the potential to minimise conflict.
any other fact or circumstance that the court thinks is relevant
85No other fact or circumstance is relevant.
CONCLUSIONS
86Having considered the evidence in the context of the primary and additional considerations, I have come to the following conclusions.
The children's living and spend time arrangements
87I intend to make an order that the parties have equal shared parental responsibility for the children as sought. A consequence of making that order is that I must consider whether the children spending equal time with their parents is in their best interests and reasonably practicable. If so, I must consider making such an order. If I do not make an order for equal time I must consider whether an order for substantial and significant time would be in the best interests of the children and reasonably practicable. If so, I must consider making such an order.
88The parties have agreed that the children will live with the mother and spend time with the father every alternate weekend and during school holidays. This is substantial and significant time. There is no evidence to suggest that a significant change to the children's arrangements such that they spend equal time with their parents would be in their best interests. The children are content with the existing arrangement and such a change would not accord with their wishes. The children are settled and accustomed to the existing arrangement. An order for substantial and significant time is in the best interests of the children and reasonably practicable.
89I intend to order that in addition to the alternate weekends during the term time, the children spend time with the father on Tuesday afternoon each intervening week. This will enable the father to be more involved in the children's education and to assist them with their school work, as he considers it necessary to do so. It will also ensure that the gap between the periods of time the children spend with the father is reduced to a maximum of eight days. I consider that Tuesday afternoon every week would be too disruptive for the children and would not necessarily accord with their wishes. A disadvantage of additional time every week is that it also increases the number of handovers.
90I consider the children should have an opportunity to settle in a parent's home, but I consider they would benefit from additional time with the father one afternoon per fortnight.
Child A's views
91I do not intend to make an order that the arrangements for Child A occur in accordance with her wishes. Child A is 12 years of age. Such an order introduces a degree of uncertainty in the orders and there is scope for disagreement between the parties as to what Child A’s wishes are. Although Child B and Child C are younger than Child A, I do not consider it is in the best interests of the children to differentiate between them in that way. Such an order has potential for Child A to be confused and to carry a responsibility which should properly rest with her parents. I do not consider such an order to be in Child A’s best interests. I take account of the father's evidence that he will talk to Child A about her views and she should be encouraged to discuss them with him.
Attendance at extracurricular activities
92Having regard to the nature of the relationship between the parties and the likelihood for conflict or confrontation between them at sporting and extracurricular events, I intend to order that neither party shall attend these events during the time the children spend with the other party. It is unfortunate that the parties do not enjoy the kind of relationship which would enable this to occur. I intend to order therefore that apart from special events or grand final occasions, each party will attend and manage the children's sporting activities in the time the children are with each of them.
93Similarly, I do not intend to order that the mother provide the father the opportunity of attending a sporting or extracurricular activity if she is unable to do so. Once again this creates uncertainty. It will be up to each parent to make appropriate arrangements for the children and their activities while they are in their respective care. This will be the arrangement unless the parties agree otherwise in writing, which they are at liberty to do. The rationale behind this is to minimise the children's exposure to the parties' conflict and reduce their anxiety.
Handovers
94Currently, when handovers do not occur at school, they occur at the corner of Street A and Street B, Suburb A. The father seeks to vary the orders as he considers this arrangement not to be in the best interests of the children. I agree. The children have to alight from the father's car, often with bulky belongings and then walk a short distance to the mother's home, albeit within her sight. At times this is done in the dark.
95On the other hand, I understand the mother's wish that the father not attend her home. His attendance there has caused conflict and has also caused difficulties for her partner. I am not convinced that the father is as well‑behaved at handover as he indicates he is. On balance however, I consider it to be in the best interests of the children that they be delivered to a parent's home. The order will be that the father collect the children from and return the children to the mother's home. I do not intend to require the mother to attend the father's home by reason of family violence in the past. There will, however, be very clear orders requiring the father to remain either in his vehicle or in close proximity to it, and not to cross the boundary of the mother's home. The mother is to remain inside.
96Such an arrangement will be better for the children and, on a practical level, easier for them to manage their belongings. These handovers at the mother's home will only take place on one occasion each fortnight when the children spend midweek time with the father and also during school holidays.
97The parties live close to each other and there is no other suitable handover location between their homes.
Extra time
98An order providing that a party look after the children in the event that the other party is unable personally to do so for short periods of time can be unnecessarily disruptive to the children. Both parties should make arrangements for looking after the children when they are in their care. The mother's suggestion that if a party is unable to look after the children personally for four nights or more, then the other party should have the option of doing so, is a reasonable one.
Therapy
99Mr D recommended therapy with Ms C at a time when the children's circumstances were very different to the way they are now. Specifically, Mr D recommended "brief solution focused therapy" with a psychologist experienced in counselling parents and children who resisted contact with the rejected parent and sided with the aligned parent. At that time Child A and Child C were not seeing the father. That is not the case now and the children see him regularly. I do not accept the father's contention that they are currently alienated from him by the actions of the mother. She has facilitated the children's time with the father.
100Taking this into account, I do not intend that either party attend therapy with Ms C as recommended by Mr D. I do not consider such therapy to be necessary in the circumstances as they exist now. The cost of such therapy is a difficulty for the mother. I am also mindful that the parties were able to agree many parenting orders, including that they have equal shared parental responsibility for the children.
101The parties can be relied upon to obtain psychological assistance for themselves if needed. It is also open to them to agree to seek family therapy with a view to repairing their co-parenting relationship as advised by the Family Consultant.
102The children may benefit from counselling. It was of assistance to them previously. If it is considered necessary by either or both of the parties, then the children should attend Anglicare for counselling, with the parties to share the cost equally.
Telephone communication
103As I intend to order that the children spend time with the father on a Tuesday afternoon each alternate week, the telephone communication will take place on Wednesday of each week as that is not a day the children will otherwise see the father.
THE PROPOSED ORDERS
104With respect to the orders below, orders 1, 2, 3, 4(a), 5, 6, 8, 9, 10, 11, 15, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 31, 32, 33, 34, 35, 36, 37, 38, 39, 41, 42, 43 and 44 are made by consent; orders 4(b), 7, 12, 13, 14, 16, 17, 18, 19, 30 and 40 are made by determination.
1All previous parenting orders be discharged.
Parental responsibility
2The father, [MR FLETCHER] and the mother, [MS STEVENSON] have equal shared parental responsibility for the children [CHILD A], born [in] 2006, [CHILD B], born [in] 2007 and [CHILD C], born [in] 2009 in relation to decisions relating to their long-term care, welfare and development.
Live with and spend time arrangements
3The children live with the mother.
4The children spend time with the father as follows:
(a)commencing 16 November 2018, on each alternate weekend, from after school on Friday or 3.00 pm in the event that it is a non-school day, until the commencement of school on Monday, and in the event that Monday is a public holiday or a pupil free day, the children's time with the father shall be extended to conclude at 5.00 pm on Monday; and
(b)commencing 27 November 2018, each alternate Tuesday from after school until 7.00 pm.
School holidays
5During the Term 1 and Term 3 Western Australian gazetted school holiday periods, the spend time arrangements shall be suspended and the children shall live with the mother and shall spend time with the father from 3.00 pm on the first usual fortnightly Friday that the father would otherwise have been spending time with the children, until 3.00 pm on the next Friday thereafter, totalling seven consecutive nights.
6During the Term 4 Western Australian gazetted summer school holiday periods, the spend time arrangements shall be suspended and the children shall live with the mother and shall spend time with the father for two separate periods of not more than seven nights, with such dates to be agreed between the parties in writing not less than 30 days prior to the commencement of the school holiday period.
7Following the school holiday periods at the end of Terms 1, 3 and 4, the two week cycle as set out in order 4 shall resume and remain in full force and effect as if the school holidays had not occurred.
Christmas arrangements
8During the Christmas period each year, which is defined as being from 12.00 pm (noon) on Christmas Eve, 24 December until 5.00 pm on Boxing Day, 26 December, the spend time arrangements shall be suspended and the children shall spend time with the parties as follows:
(a)with the mother in 2018 and each alternate year thereafter, from 9:00 am on Christmas Eve, 24 December until 2:00 pm on Christmas Day, 25 December;
(b)with the father in 2018 and each alternate year thereafter, from 2.00 pm on Christmas Day, 25 December 2018 until 5.00 pm on Boxing Day, 26 December;
(c)with the father in 2019 and each alternate year thereafter, from 3.00 pm on Christmas Eve, 24 December until 2.00 pm on Christmas Day, 25 December; and
(d)with the mother in 2019 and each alternate year thereafter, from 2.00 pm on Christmas Day, 25 December 2018 until 5.00 pm on Boxing Day, 26 December.
Easter
9During the Easter period each year, which is defined as being from 9.00 am on Good Friday until 5.00 pm on Easter Monday, the spend time arrangements shall be suspended and the children shall spend time with the parties as follows:
(a)with the father in 2019 and each alternate year thereafter, from 9.00 am on Good Friday until 5.00 pm on Easter Monday; and
(b)with the mother in 2020 and each alternate year thereafter, from 9.00 am on Good Friday until 5.00 pm on Easter Monday.
Special occasions
10The spend time arrangements shall be suspended on special occasions, as provided for herein, and the children shall spend time with the parties as follows:
(a)on Mother's Day each year, the father's time with the children be suspended and, in the event that the children are not otherwise in the care of the mother, the children spend time with the mother from 5.00 pm on the day before Mother's Day until the commencement of school on the Monday immediately following Mother's Day or 9.00 am in the event that it is a non-school day;
(b)on Father's Day each year, the mother's time with the children be suspended and, in the event that the children are not otherwise in the care of the father, the children spend time with the father from 5.00 pm on the day before Father's Day until the commencement of school on the Monday immediately following Father's day or 9.00 am in the event that it is a non-school day;
(c)on each of the children's birthdays, the children shall spend time with the non-resident parent for a period of up to three hours, with such times to be agreed between the parties in writing at least seven days prior to the child's birthday and, in the event that agreement cannot be reached, then from the conclusion of school or 3.00 pm if the birthday falls on a non-school day, until 7.00 pm on the child's birthday;
(d)on the father's birthday, the children shall spend time with the father for a period of up to three hours, with such times to be agreed between the parties in writing at least seven days prior to the father's birthday and, in the event that agreement cannot be reached, then from the conclusion of school or 3.00 pm if the birthday falls on a non‑school day, until 7.00 pm on the father's birthday; and
(e)on the mother's birthday, the children shall spend time with the mother for a period of up to three hours, with such times to be agreed between the parties in writing at least seven days prior to the mother's birthday and, in the event that agreement cannot be reached, then from the conclusion of school or 3.00 pm if the birthday falls on a non‑school day, until 7.00 pm on the mother's birthday.
11In the event that either party otherwise has any special occasion during which they seek to spend time with the children, the parties shall confer and agree in writing in respect of any additional time to be spent by the children, to accommodate the request of either parent for any other special occasion.
12In the event that a party is unable to personally care for the children for a period in excess of four nights, that party shall first give the other parent the opportunity to do so.
13In the event that the other parent does not respond to an offer to care for the children pursuant to order 12 above, within 48 hours, the parent who is unavailable to care for them personally is at liberty to make arrangements for them to be cared for by a third party.
14The parties be at liberty to vary these orders provided the variations are agreed in writing.
Handover
15Handover shall occur at the children's school (on days when the children are attending school), with the father to be responsible for collection of the children from school at the commencement of his time, and for delivery of the children to school, at the conclusion of his time with the children.
16When handovers do not occur at school they shall take place at the mother's home with the father to collect the children from and deliver the children to the mother's home.
17Unless otherwise necessary the father shall remain in his motor vehicle or in close proximity to it and the mother shall remain in the home.
18At no time shall the father cross the boundary of the mother's property.
Communication
19The father be at liberty to have telephone communication with the children commencing from 14 November 2018, on each Wednesday at 7.00 pm and for a period of up to 30 minutes, in accord with the children's wishes, with the father to initiate the call to either [Child A’s] mobile telephone or [Child B’s] mobile telephone.
20The mother shall ensure that [Child C] has access to either [Child A’s] or [Child B’s] mobile telephones to facilitate the telephone communication.
21The parties communicate via SMS text message or email only, with such communication to be limited to information and matters concerning the children only, and the parties ensure that all communications are conducted in a respectful manner.
22For the purposes of communication in accordance with paragraph 21 above, within seven days the parties provide to each other their current mobile telephone numbers and email addresses.
23In the event that the details of either party's mobile telephone number or email address change, that party shall provide to the other updated contact details, in accordance with paragraph 22 above within 24 hours of such change occurring.
Medical
24In the event that any of the children become hospitalised, or in the event of any emergency concerning any of the children, the resident parent shall notify the non-resident parent, as soon as practicable, via telephone call, and shall provide to the other party the opportunity to visit the child during any period of hospitalisation, where applicable.
25Each party shall ensure that the other is kept informed of any medical conditions, including psychological conditions, whatsoever or medical treatment, including the name and details of any treating medical practitioner/health care professional of the children whilst in their care.
26Each party shall authorise the children's treating medical practitioner/health care professional to discuss with the other parent matters relating to the children's medical, psychological or other health care issues.
27Each party shall provide to the other details of any appointments scheduled for any of the children, where such appointments are to occur during periods that the children will spend in that party's care, and the parent with the care of the children shall ensure that the children are in attendance at any such scheduled appointments that occur during that parent's time with the children.
28Each party shall advise the other of the name and contact details of any doctor, counsellor or other practitioner upon whom the children attend and inform the other party of any prescribed medication or treatment plan for any medical condition with which any of the children is diagnosed, and each party shall provide to the other all necessary medications and directions for administering such medications, with the parties to ensure that the children receive any necessary and/or prescribed medications during periods in which the children are in their care.
29Each party be at liberty to communicate with any doctor, counsellor or practitioner currently treating or previously treating the children.
Therapy
30In the event that a party considers it necessary that the children or any of them require or would benefit from therapeutic assistance, that party is at liberty to arrange for the children to attend upon Anglicare or other appropriate practitioner.
Education
31Each party ensure that the other is kept informed of any issues of significance to the welfare of the children, including their progress at school and at extra-curricular activities.
32Each party shall authorise the children's schools to provide to the other parent copies of all school notices, end of term/semester school reports, notifications of upcoming school assemblies, award ceremonies or other school events concerning any of the children.
33Each party and their partner/spouse shall be at liberty to attend parent/teacher meetings/interviews, open nights, school activities and other school events concerning the children and, in the event that the parties are both in attendance at such events, the parties shall not behave in an intimidating or offensive manner towards the other party or the other party's partner/spouse.
Interstate travel
34In the event that either party wishes to travel interstate with the children:
(a)the travelling party be required to give the non‑travelling party not less than 28 days' written notice of their intention to travel, and such travel to extend over a period of no more than 14 consecutive nights;
(b)not less than 14 days prior to the departure date, the travelling party shall provide to the non‑travelling party a full itinerary for the proposed holiday, including contact numbers on which the non-travelling party may contact the travelling party and the children;
(c)subject to the travelling party complying with paragraphs 34(a) and 34(b) above, the non‑travelling party shall not unreasonably withhold their consent and shall provide written consent to the proposed travel (except for in the case of reasonable refusal); and
(d)the travelling party be solely responsible for the costs associated with their and the children's travel on each occasion that they travel pursuant to these orders.
Overseas travel
35In the event that either party wishes to travel overseas with the children:
(a)the travelling party be required to give the non‑travelling party not less than 60 days' written notice of their intention to travel, and such travel to extend over a period of no more than 14 consecutive nights;
(b)not less than 28 days prior to the departure date, the travelling party shall provide to the non‑travelling party a full itinerary for the proposed holiday, including contact numbers on which the non-travelling party may contact the travelling party and the children;
(c)the travelling party shall ensure that the children are covered by a valid and current travel insurance policy for the proposed period of travel and provide to the non-travelling party a Certificate of Currency or other proof of insurance document by not later than 14 days prior to the proposed departure date;
(d)subject to the travelling party complying with paragraphs 35(a), 35(b) and 35(c) above, the non‑travelling party shall not unreasonably withhold their consent and shall provide written consent to the proposed travel (except for in the case of reasonable refusal); and
(e)the travelling party be solely responsible for the costs associated with their and the children's travel on each occasion that they travel pursuant to these orders.
36During all periods in which the children travel, the children shall telephone or SMS text message the non‑travelling parent not less than every third day, for the purposes of facilitating communication with the non‑travelling parent whilst interstate or overseas.
37In the event that any of the children require the issuing or the renewal of a passport, the parties do all acts and things and sign all documents necessary to facilitate the renewal of the passport, within seven days of a written request from the other, with the parties to equally share in all costs associated with obtaining the passport, and the passport(s) be provided to the mother for safekeeping, pending any travel occurring pursuant to these orders.
38In the event that either party travels with the children during periods in which the children would have otherwise been in the care of the other party, the non‑travelling party shall be afforded make up time, following the children's return from travel, with such dates to be agreed between the parties in writing, and failing agreement, to be nominated by the non-travelling party with not less than 14 days' notice of the commencement date for such make-up time to occur.
Injunctions
39The parties be restrained by injunction and an injunction be hereby granted restraining each party from approaching the other, on such occasions that both parties are in attendance at any events concerning the children.
40The parties be restrained by injunction and an injunction be hereby granted restraining the parties from attending at the children's extracurricular/sporting activities at times when the children are not in their care, save for in the event of:
(a)the prior express consent of the other party to be provided in writing, which may include written consent via text message; or
(b)in the event of a grand final sporting event or other special one-off extracurricular event.
41The parties be restrained by injunction and an injunction be hereby granted restraining each party from attending at the residential address of the other party, or requesting any third person to attend at the residential address of the other party (except as otherwise provided for in these orders), without the prior written consent of that party, which may include written consent via text message.
42The parties be restrained by injunction and an injunction be hereby granted restraining the parties from:
(a)denigrating the other party to or within the presence or hearing of the children;
(b)discussing the Court proceedings, either present or historical, to or within the presence or hearing of the children, or disclosing to the children any of the Court documentation;
(c)questioning the children in respect of the other parent's relationships and activities;
(d)causing or requesting the children to relay messages or information to the other parent;
(e)causing any social media postings to be made, on either Facebook, Twitter or any other social media forum, denigrating the other parent or the partner/spouse of the other parent, or any derogatory reference regarding the other parent or their home circumstances, or allowing any other person to do so on their behalf; and
(f)travelling interstate or overseas with the children without the prior written consent of the other party or as otherwise provided for in these orders, or otherwise with an order from the Family Court of Western Australia;
or allowing any third party to do so.
43The parties be restrained by injunction and an injunction be hereby granted restraining the parties from changing the residential address of the children to any address that is located outside more than a 40 kilometre radius of that party's current residential address.
44The parties be restrained by injunction and an injunction be hereby granted restraining them from changing the children's schools from the schools they are currently enrolled in, without the prior written consent of the other party.
Procedural orders
45The proceedings otherwise be and are hereby dismissed.
46In relation to material tendered as an exhibit into evidence in these proceedings:
(a)all parties must collect the exhibits tendered by them ("their exhibits"), from the chambers of Justice Duncanson, at least 28 days, and no later than 42 days, from today’s date;
(b)all parties must contact the chambers of Justice Duncanson to arrange the collection of their exhibits; and
(c)in default of compliance with subparagraph (a), all material tendered as an exhibit, save and except for material produced pursuant to subpoena, will be destroyed by the Court without notice to the parties.
47In the event of an appeal being lodged prior to the expiration period of 42 days, paragraph 46 above does not apply.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
RM
ASSOCIATE9 NOVEMBER 2018
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