FLYNN and SAUL

[2017] FCWA 56

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: FLYNN and SAUL [2017] FCWA 56

CORAM: O'BRIEN J

HEARD: 27 MARCH 2017

DELIVERED : 24 MAY 2017

FILE NO/S: PTW 4024 of 2014

BETWEEN: MS FLYNN

Applicant

AND

MR SAUL
Respondent

Catchwords:

PARENTING - where the wife seeks continuation of long standing arrangements and the children express views consistent with that approach - where husband initially seeks either equal time with children or no time at all but later moderates that position - where the husband declines to file trial evidence - turns on own facts.

Legislation:

Family Law Act 1975 (Cth), s 4AB, s 60CC, s 61B, s 61C, s 61D, s 61DA, s 61DAA

Category: Not Reportable

Representation:

Counsel:

Applicant: Self-Represented Litigant

Respondent: Self-Represented Litigant

Solicitors:

Applicant: Self-Represented Litigant

Respondent: Self-Represented Litigant

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

Bondelmonte & Bondelmonte (2016) 91 ALJR 402

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

1[Mr Saul] (“the husband”) and [Ms Flynn] (“the wife”) began living together in 1994. They were married [in] 1997 and separated in December 2012.

2The parties have three children: [Child A], [a son] born [in] 1999, a daughter [Child B], born [in] 2004, and another son [Child C], born [in] 2006.

3The parties have been unable to agree the parenting arrangements for Child B and Child C. Sensibly, they agree that while there are proceedings on foot in relation to Child A there is no utility in parenting orders being made in relation to him given that he will [soon] turn 18.

Background

4The proceedings were commenced by the wife filing an application on 10 February 2015. In that application, she sought to maintain what she described as being the parenting arrangements for the children which had been in place since separation. She said that her application was prompted by the husband taking unilateral steps to change those agreed arrangements and retaining the children.

5The husband filed a Form 1A response on 27 February 2015. In that response, he sought a variety of orders. He sought that an equal care arrangement be put in place, such that the children would spend 50 per cent of their time with each parent, but also sought an order that he “be nominated as the primary carer for [Child B] and [Child C]” with Child A being “free to move between parents”. He described a number of scenarios which in his view would give effect to that overall arrangement.

6The husband also sought a variety of orders in relation to overseas travel, birthdays and other special occasions, and a non-denigration order. He specifically sought an order that “the mother attend independent counseling (sic) or therapy to help with issues of Alcoholism, Narcissistic personality disorder, Depression and Grief”.

7When the matter came before the court on 16 February 2015, interim orders were made for the children to live with the wife and to spend time with the husband as follows:

(a)each alternate weekend from after school Friday to the commencement of school on Monday;

(b)the week immediately following the [husband’s] weekend time with the children from:

(i)after school Monday until 6.00 pm, with the [wife] to collect the children from the [husband’s] home at the conclusion of time spent; and

(ii)from after school Wednesday until the commencement of school on Thursday; and

(c)the week immediately following the [wife’s] weekend time with the children from:

(i)after school Monday to the commencement of school on Tuesday; and

(ii)from after school Wednesday to 7.15 pm, with the [wife] to collect the children from the [husband’s] home at the conclusion of time spent.

8At trial, both parties confirmed that those are the arrangements presently in place.

9Further orders were made in relation to school holiday periods and telephone communication with the children.

10The parties attended a Case Assessment Conference on 8 June 2015. During that conference, the wife raised issues of behaviour on the part of the husband which would meet the definition of family violence contained in the Family Law Act 1975 (Cth) (“the Act”). The husband acknowledged that the parties had what he described as a “volatile relationship”, saying that they both had a temper and that he “might have grabbed [the wife] a few times”. He admitted punching holes in doors on several occasions. He acknowledged that the children had seen him lose his temper.

11The husband raised concerns about the wife’s alcohol consumption. He also asserted that the mother showed signs of depression and narcissistic personality disorder, while acknowledging that she had never been diagnosed with any mental health issues. The Family Consultant reported that the father considered himself able to diagnose the wife based on his experience working as a life coach.

12The wife confirmed to the Family Consultant that she proposed that the existing arrangement for the children continue. The husband advocated for the children to spend equal time with each parent and made it clear to the Family Consultant that he would pursue that result even if the children said that they wanted the current arrangements to remain in place.

13Further orders were made on 27 July 2015 to facilitate arrangements whereby each party could propose overseas travel with the children. With some minor variations, as detailed below, the parties agreed at trial that those orders should continue.

14The interim arrangements for the children were the subject of argument before a Magistrate on 27 July 2015. The presiding Magistrate determined that the then existing arrangements should continue until further order and dismissed the outstanding interim applications and responses.

15Pursuant to an order made on 24 March 2015, the children were interviewed and a family report prepared. That report is in evidence. In short, it confirmed that Child B and Child C wanted the current arrangements to remain in place, although Child C was open to change, but not until he is older.

16The proceedings were then programmed through to a readiness hearing on 3 May 2016. Orders in standard terms were made for the parties to file their trial affidavit materials prior to that hearing.

17On 31 March 2016 orders were made by consent to facilitate the husband taking the children to Bali for a holiday.

18The readiness hearing took place as scheduled on 3 May 2016. Neither party had filed their trial materials. The husband did not attend the hearing. The proceedings were adjourned to a further readiness hearing on 25 October 2016.

19Prior to that hearing, the wife filed her trial affidavit material. The husband did not. An order was made again extending the time for the husband to file his trial materials, requiring those documents to be filed and served by 25 November 2016. The matter was otherwise included in the call over scheduled for January 2017 for the allocation of a trial date.

20The husband did not file his trial affidavit materials as ordered and the proceedings were listed to trial before me.

21Both parties attended a status hearing listed of the court’s own motion on 22 March 2017. The wife confirmed that she still sought orders which would have the effect of continuing the existing arrangements for the children.

22The husband said that the current arrangements for the children simply do not work from his perspective. He pointed out that he was working full-time, and that he had remarried and had a new family. He said that from his point of view the “only” options were that the arrangements for Child B and Child C move to an equal time arrangement on one of the options as proposed by him or that he “step away” and not pursue the matter further.

23He said, “I feel I’ve been trapped into an agreement that restricts me beyond normal parental commitments and certainly beyond my general responsibilities as a parent”.

24The husband confirmed that he presently sees the children within the framework of the current orders, but that he regarded those arrangements as unsatisfactory. He said that when he is running a seminar, or otherwise working on a weekend when the children are to be with him, they miss out on quality time with him and that when he is working on an afternoon, when they are to spend time with him after school but not stay overnight, they are effectively “babysat” by his now wife.

25The husband acknowledged that he had not filed his trial affidavit material and said that he did not intend to do so. He had prepared Papers for the Judge, which I permitted him to file. He said that he would seek to make submissions at the trial as to why he would say the arrangements for the children should move to a week and week about regime.

26I explained to the husband the issues that he would face by virtue of not having filed a trial affidavit. I advised him that it was open to him to seek yet another extension of time within which to do so. I also explained that it was open to him to seek an adjournment of the trial, to allow him to better prepare and to present evidence, and that if he did seek such an adjournment his request would be considered on its merits.

27He declined to seek either an extension of time to file trial affidavits or an adjournment.

28At the status hearing I also confirmed with both parties that they had previously received the handbook prepared by the court for the assistance of self-represented litigants in parenting cases. I urged them both to read that handbook carefully prior to the trial, whether or not they had previously done so, so as to ensure that they understood both the procedures to be followed and the issues to be addressed.

29At trial, the husband acknowledged that that advice had been given, but stated that he had not read the handbook.

30At the status hearing, I also explained to both parties the flexibility in approach afforded by the provisions of Div 12A of Pt VII of the Act. I invited them to consider prior to trial whether they wished to take the opportunity to cross-examine each other at the hearing, or whether they wished the matter to be determined on the papers and on the basis of oral submissions being made. I confirmed with the wife that she sought to rely on the affidavits of herself and her witnesses [Ms D] and [Ms K] referred to in her Papers for the Judge. I confirmed also that the husband had given no notice of any intention to cross-examine those witnesses.

31The husband subsequently confirmed in his Papers for the Judge that he sought to rely on his own affidavits filed earlier in the proceedings and the affidavit of his wife, filed on 24 April 2015.

32I explained to the parties that at the commencement of the trial I would outline the process to be adopted in more detail and would explain to them further the principles by which child-related proceedings are to be conducted.

33I raised with the parties at the status hearing the fact that neither had addressed in their documents the issue of parental responsibility, nor sought any orders in relation to that issue. They both confirmed at that time that an order for equal shared parental responsibility could be made by consent; by the time of trial, the wife had changed her mind in that regard.

The evidence at trial

34The wife relied on the following affidavits:

1.her case information affidavit filed on 10 February 2015;

2.her affidavit filed on 12 February 2015;

3.her trial affidavit filed on 30 September 2016;

4.two affidavits by Ms D, a psychologist providing counselling services to Child B, filed on 13 April 2015 and 27 September 2016; and

5.the affidavit of Ms K filed on 7 April 2015.

35As noted, the husband did not file any affidavits for the purposes of trial pursuant to the various orders made and the various extensions of time granted. I permitted him to rely at trial on the following affidavits:

1.his affidavit filed on 27 February 2015;

2.his affidavit filed on 24 April 2015; and

3.the affidavit of [his new wife] filed on 24 April 2015.

36The Case Assessment Conference memorandum and the family report were both in evidence. Neither party sought to cross-examine the Family Consultant.

The law

37In deciding whether to make a particular parenting order, I am required to regard the best interests of the children as the paramount consideration. I must be guided by the objects of the Act and the principles underlying them.

38Section 61DA of the Act provides as follows:

Presumption of equal shared parental responsibility when making parenting orders

(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

(a)abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or

(b)family violence.

(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

39If an order for equal shared parental responsibility is to be made, I am required to consider whether spending equal time with each parent is in the children’s best interests and reasonably practicable. If so, I am required to consider making such an order.

40Again against the background of an order for equal shared parental responsibility being made, if I do not make an order for the children to spend equal time with each parent, I am required to consider whether spending substantial and significant time, as defined in the Act, with each parent would be in the relevant child’s best interests and reasonably practicable. If so, I am required to consider making such an order.

41During the course of his submissions at the trial, it became apparent that the husband was operating under a misapprehension in that regard. He initially framed his submissions on the basis of an assertion that there is a statutory presumption that children should spend equal time with each parent, and the associated assertion that the wife therefore bore the onus of displacing that presumption by producing evidence to demonstrate that the children would be in danger, or at risk of harm, in an equal care arrangement. At an early stage in the trial, I explained to the husband the extent of his apparent misunderstanding and drew to his attention both the statutory presumption in relation to parental responsibility (as distinct from living arrangements and time) and the considerations set out in s 60CC of the Act.

42While the factors set out in s 60CC are divided in the legislation into “primary” and “additional” considerations, the primary considerations do not necessarily outweigh any combination of the additional considerations.

43As the High Court has recently observed, a parenting order involves the exercise of judicial discretion, and the assessment of the considerations set out in s 60CC by reference to the circumstances of the case involves value judgements in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of the child: Bondelmonte & Bondelmonte (2016) 91 ALJR 402 at [32].

The conduct of the trial

44Against the background of the information provided to the parties at the status hearing, and my further explanation at the commencement of the trial of the principles by which child-related proceedings are to be conducted, I invited submissions from each of the parties as to the manner in which the trial was to be conducted.

45I explained the steps that I was required to take to ensure that procedural fairness was afforded to both parties. I informed them of the manner in which the trial was to proceed (unless otherwise agreed), the order of submissions and evidence, and the nature and purpose of updating evidence-in-chief, cross-examination and re-examination. I explained to both parties the importance of cross-examination and the likelihood that relevant and factual evidence which was not challenged on cross-examination would be accepted.

46I also ensured that both parties understood that the usual rules of evidence were not to be applied. I explained my obligation to attempt to clarify the substance of any submissions they might make, so as to ensure that I properly understood their cases as they wished them to be put.

47Both parties are intelligent and articulate. Neither had any hesitation in asking me questions at any stage and I am satisfied that they both understood the information which I provided to them. I am also satisfied that the trial proceeded in a manner that afforded each of them procedural fairness.

48As already noted, the husband did not seek an extension of time within which to file further affidavit material nor did he seek an adjournment of the trial.

49Both parties acknowledged that they had not given notice of any intention to cross-examine witnesses.

50Each took the opportunity to briefly cross-examine the other party.

The wife’s case

51The wife’s consistent position throughout the proceedings, and which she maintained at trial, was that the present arrangements for the children to spend regular time with the husband should continue. She said that the arrangements had been in place virtually since separation, that they afforded the children the opportunity to spend substantial and significant time with both parents and that the arrangements remain in accordance with the children’s wishes.

52Consistent with that approach, when I raised with the wife the possibility that orders might be made to dispense with the short time the children spent with the husband on either Monday or Wednesday of each intervening week (when they come to his home after school and then picked up at about 6.00 pm) she resisted that suggestion. While it falls on her to collect the children from the husband’s home at the conclusion of that visit, and she acknowledged that life might be simpler if that visit did not continue, she said that the children enjoyed it and wanted it to continue. In response to the husband’s argument that the children sometimes do not see him during that visit due to his work commitments, she submitted that there was a benefit to the children from, and they enjoyed, time with the husband’s wife and their baby.

53As set out in more detail below, the wife was also content for existing orders to continue in relation to each party having an opportunity to take the children overseas for a short period during school holidays, subject to some minor variations to which the husband agreed. She did not oppose the order sought by the husband to facilitate longer holidays overseas in alternate years and visits to his family in [Europe], subject to the same conditions and to the travel in question being in accordance with the wishes of the children at the time.

54Otherwise, the wife’s primary focus was to have the proceedings in this Court finally concluded and to have in place a set of orders sufficiently clear to minimise the scope for further disputes in the future.

The husband’s case

55The husband’s primary position was that the children should live equally with both parents, on one of the two alternative scenarios presented by him. He was firm in his view that an arrangement of that nature was not only more workable for him, but in the children’s best interests. He maintained that position with the same vigour after I explained to him his misunderstanding of the legal position, and the absence of any statutory presumption of equal time.

56The husband’s secondary position, in the event that an order for equal time was not made, proved elusive:

[HIS HONOUR]: [I want] to know what your position is.

[RESPONDENT]: I don’t have a position Your Honour, I’ve mulled this over in my head a million times I can only see one scenario working…it will be up to [the Applicant] to try and negotiate and work that out with me to find something that works.

57And later:

[RESPONDENT]: If I don’t get equal time with the children… I don’t have a Plan B Your Honour… it takes me time to process information that’s new to me.

[HIS HONOUR]: How long has the court case been going?

[RESPONDENT]: Maybe two, three years.

[HIS HONOUR]: You can’t seriously say you haven’t thought about Plan B before today?

[RESPONDENT]: There’s no negotiation ever happening that changes what it is.

[HIS HONOUR]: It’s not negotiation; it’s a matter of what you have thought about as being options for your children.

58At the status hearing, he told me that an order for equal time was the only arrangement that he could “see working”.

59In his Papers for the Judge filed on 24 March 2017 he said (errors as they appear in the original):

Some time ago I choose to opt out, I now wish to see the conclusion of this case swiftly so I can go on with my life.

I will not fight anymore.

I trust that the kids will be OK whatever happens.

The only component of the current arrangement that works is the alternate weekend with each parent (being Friday/Saturday/Sunday over night). The current arrangement for Monday through Thursday does not work.

I wish to be clear, I am not available to continue with the current arrangement, it puts too many restrictions on my life if I am to maintain a meaningful relationship with the children.

60And later (errors as they appear in the original):

If it is the courts decision to maintain the current arrangement, it is with great sadness and a heavy heart that I will not be available to be a part of it. The children when they are able to decide for themselves, can choose to spend time with me.

61The husband’s position along those lines was further confirmed in emails which he sent to the wife on 13 February 2017 and on 25 March 2017 just before trial. In the latter email, referring to the status hearing, he said:

I clarified with the Judge that I am not available to continue the current arrangement. The argument Monday will be simple; the Judge is going to grant you full custody or he is going grant the schedule I have proposed. He stated as I am not available for the current schedule that will not be an option.

I struggle to believe that you would prefer that I have no contact with the children rather than follow my proposed schedule. However, that may be your intention and that may be the case.

If the Judge grants you full custody then I am going to propose that you need to pick them up from school on Monday, you will then obviously have full care of the children from then on. I will be left to go about my life sadly without the children being part of it.

If the Judge grants my proposed schedule then everything also changes. Either way we need to wait and see what happens on Monday. Whatever the outcome on Monday the current arrangement will cease to be law and will terminate.

I can’t imagine you would be willing for me to not be in the children’s life but I am fully prepared for that outcome.

If you wish to come to a mutual agreement that we can take into court Monday then let me know; there are only two options though. I hope that clarifies things for you.

62The husband maintained that position even during cross-examination.

63In answer to questions from me, he confirmed his belief that he currently has a meaningful relationship with the children. He denied any intention to manipulate the wife by the position he had adopted to that point. He appeared to struggle to understand how his conduct in that regard might be perceived to be manipulative even against the background of an acceptance that the wife believes that his relationship with the children is important to them, that they wish to see him and that it is in their best interests to do so.

64He also conceded under cross-examination by the wife that he runs approximately 10 weekend seminars per annum as part of his business. In response to a question from me as to his ability to plan his working schedule, he said that in most instances he is able to plan up to a year in advance. He did not appear to acknowledge the inconsistency of those two answers with his emphatic assertion that the current arrangements for the children cannot work.

65When the evidence concluded, I offered the parties the opportunity of a break in proceedings to gather their thoughts before making closing submissions. They both accepted that opportunity. I emphasised to the husband the need for him to carefully consider his position and address me very clearly as to what orders he would say should be made in the event that I did not find it to be in the best interests of the children to spend equal time with each parent. I specifically asked him to consider how his previously expressed alternative position, that he would choose to spend no time with the children if he could not have equal time, would be in their best interests.

66In his closing submissions, the husband moderated his position. While firmly maintaining his submission that equal time would both work best for him and be best for the children, he did not maintain his previously expressed position that the only alternative was one which would see him spending no time with the children. He indicated that if I was not prepared to order equal time, then an order extending the current short visit after school, each alternate Monday or Wednesday, to an overnight visit would be acceptable to him.

The presumption of equal shared parental responsibility

67As already noted, the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence.

68The words “reasonable grounds to believe” in sub-s 61DA(2) of the Act are not unimportant. The Act does not require proof that a parent or other relevant adult has engaged in abuse of a child or family violence before the presumption of equal shared parental responsibility will not apply; it is sufficient for there to be “reasonable grounds to believe” that circumstance.

69There is no suggestion by either party that the children have been the subject of abuse as that term is defined in s 4 of the Act.

70The term “family violence” is defined in s 4AB of the Act to mean “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful”.

71The relevant section sets out an inclusive rather than exclusive list of examples of behaviour that may constitute family violence.

72Section 4AB(3) goes on to confirm that for the purposes of the Act, a child is exposed to family violence if he or she “sees or hears family violence or otherwise experiences the effects of family violence”.

73Following the Case Assessment Conference on 8 June 2015 it was reported that:

The mother alleges the father has been physically abusive towards her on 3 occasions (hit her once, kicked her once and physically forced her back into the house once), threatened her on numerous occasions, thrown furniture and speakers, punched doors, broken items and damaged property, verbally abused her and sent intimidating text messages. The mother said she tries to limit contact with the father because he tries to intimidate her if she does not agree with him or if she tries to stand up to him. She gave an example of him refusing to allow her to close her car door and drive off last week when he wanted to discuss the children’s living arrangements when she goes on holiday and she ended up driving off with the door open. She perceives the father “flexes his muscles” in an attempt to intimidate her to agree with what he wants.

The father alleges he and the mother had “a volatile relationship” where they both said and did inappropriate things, explaining, “We are both passionate and we both have a temper. I might have grabbed [the wife] a few times. It was mostly raised voices – I get quite loud. It was worse in the early stages of the relationship”. He admitted punching holes in doors on several occasions but denied damaging other property.

74The wife told the Family Consultant that the children had possibly witnessed the husband behaving violently and abusively towards her and said that when the husband was angry “everyone was on eggshells”. The husband told the Family Consultant that the children “have seen me lose my temper”. He said when that happened Child B did not show any emotion, but “kept a lid on it”, while Child C “tries to make light of it because he feels nervous”. He described Child A as acting as a peacemaker, while withdrawing and keeping to himself and suppressing his feelings. He said that Child A was “more reactive to my anger. I think he rejects feelings about my anger and aggression”.

75To determine whether the statutory presumption in favour of equal shared parental responsibility applies, it is not necessary to determine which of the accounts of the parties is the more accurate, nor to apportion blame between them for the behaviour which took place in the presence of the children.

76It is sufficient to record that the evidence of both parties clearly supports a finding that there are reasonable grounds to believe that the children were exposed to family violence.

77That in turn means that the statutory presumption of equal shared parental responsibility does not apply.

78As I pointed out to the parties at trial, neither sought any orders in relation to parental responsibility, nor was there any evidence specifically directed to that issue. I do not, therefore, propose to make any such orders in the absence of agreement.

79The effect of that decision will be that, there being no order to the contrary, the statutory position as to parental responsibility will apply.

80For the benefit of the parties, I set out below the text of ss 61B, 61C and 61D of the Act.

61B Meaning of parental responsibility

In this Part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.

61C Each parent has parental responsibility (subject to court orders)

(1)Each of the parents of a child who is not 18 has parental responsibility for the child.

(2)Subsection (1) has effect despite any changes in the nature of the relationships of the child’s parents. It is not affected, for example, by the parents becoming separated or by either or both of them marrying or re‑marrying.

(3)Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section).

61D Parenting orders and parental responsibility

(1)A parenting order confers parental responsibility for a child on a person, but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.

(2)A parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent (if any):

(a)expressly provided for in the order; or

(b)necessary to give effect to the order.

The required approach to determining what parenting orders are to be made

81As no order for equal shared parental responsibility is to be made, the provisions of s 61DAA mandating consideration of equal time and, if equal time is not found to be in the best interests of the children or reasonably practicable, substantial and significant time (as that term is defined in the Act) do not apply.

82In determining whether to make a particular parenting order, the court must regard the best interests of the children as the paramount consideration. In determining what is in the children’s best interests, the court must consider the matters set out in s 60CC.

The primary considerations

83It is common ground that the children have meaningful relationships with both parents and that it is to their benefit that those relationships continue. Specifically, the husband confirmed his belief that he presently has a meaningful relationship with the children, but does not accept the proposition that the arrangements which have been in place since separation for the children to spend time with him have sustained that relationship or have the capacity to do so into the future.

84Each party has raised allegations about the behaviour of the other. The wife maintains that the husband is manipulative, that he has a temper and that the children are afraid of that temper.

85The husband has alleged in turn that the wife is manipulative. He also made submissions to the effect that an order for equal time is to be preferred, because in his view fathers are more protective than mothers. He submitted that there is more risk of the children being exposed to violent or inappropriate behaviour by new male partners (of a mother) than by new female partners (of a father). To the extent I understood those submissions I reject them as unhelpful generalisations with no specific application to the present case. No evidence was led to support any suggestion that the children are at any form of risk in the care of the mother, whether from a new partner or otherwise.

86Notwithstanding their allegations, neither party was able to articulate how the parenting orders proposed by them were preferable to those proposed by the other party in terms of the children’s safety from abuse, violence or exposure to violence. That is hardly surprising, given that on the proposal of either party the children will be spending significant time in the care of the other.

87I conclude that there is no demonstrated need for parenting orders to now be framed with a view to protecting the children from physical or psychological harm from being subjected to, or exposed to, abuse neglect or family violence.

The additional considerations

88The children have expressed their views as outlined in the family report. In short, they both want the current parenting arrangements to continue. While the family report was prepared some time ago, there is no evidence to suggest that the children’s views have changed. Given the age and level of maturity of the children, their wishes must be afforded considerable weight.

89I note also the evidence of Ms D, a psychologist who has been treating Child B since May 2014 with the involvement of both parents at different times. Ms D was not required by the husband to attend for cross-examination and her evidence was unchallenged. In his affidavit filed on 24 April 2015, while critical of Ms D’s affidavit, the husband expressed himself to be happy with the work she had done with Child B, saying that Ms D had “helped a lot”.

90In her report to the referring general practitioner on 31 October 2014, Ms D said that Child B presented with “features of anxiety and flat affect, these largely reactive to her parents’ separation two-and-a-half years ago.” She described Child B as a “very intelligent, thoughtful, and empathetic girl” who was “quite sensitive to the moods and actions of those around her…”.

91Ms D went on to report that “shared care arrangements are somewhat stressful for” Child B and that she “prefers short and regular periods of time with her Father and is distressed at present at the prospect of longer periods staying at her Father’s house”.

92In her further report on 17 July 2015, Ms D noted improvements in Child B’s anxiety and affect, but that Child B “is still experiencing distress regarding the prospect of changes to the current care arrangements”.

93In her further report dated 13 June 2016, Ms D noted that Child B continued to experience generalised anxiety and flat affect. She said:

The interim orders regarding care and living arrangements remain in place and continue to provide some stability for [[Child B]]. However, she continues to experience distress regarding the prospect of changes to the current care and living arrangements.

94In her affidavit sworn on 21 September 2016, by reference to her progress reports and clinical notes Ms D said:

I can relate the following regarding [Child B] expressed position on shared care arrangements: [Child B] reports that she loves both her parents and wants to spend time with both of them; that she wants the current long-standing care arrangements to continue; and that the prospect of those arrangements being changed causes her anxiety and distress.

95The children have good relationships with both parents. It is unnecessary for the purpose of these reasons to seek to differentiate between those relationships. Similarly, the evidence supports a conclusion that they have appropriate relationships with members of extended family. While the husband did not provide any relevant evidence in relation to the children’s relationships with his new wife and their daughter, the wife acknowledged readily that those relationships were good and beneficial for the children.

96Both parties have appropriately taken the opportunity to participate in decision-making about the children, to spend time with them and communicate with them.

97There was very little evidence about the extent to which the parties have met their obligations to maintain the children. In her initial case information affidavit, the wife said that there was in place a child support assessment against the husband, pursuant to which some modest arrears had accrued. In response, the husband alluded to a dispute as to the information provided to the child support agency but (consistent with his approach to these proceedings) said that he had “been informed that the appeal process is not worth following and so [has] decided to leave it”.

98In her trial materials the wife said that she is presently assessed to pay child support to the husband, notwithstanding the current care arrangements, as a result of him declaring income of just over $13,000.00 per annum. The husband did not dispute that.

99While the limited information provided in relation to this issue raises the possibility of inconsistency with the husband’s evidence as to his work commitments, I make no finding in that regard. Given the very limited evidence, the question of the extent to which the parties have met their respective obligations to maintain the children does not impact on my assessment of what parenting orders are in the children’s best interests.

100The court is required to consider the likely effect of any changes in the child’s circumstances. The present arrangements have been in place since the parties separated in December 2012, with the only variations being triggered by circumstances whereby the husband has been either unable for good reason or unwilling to take up the time with the children provided for in the interim orders.

101The evidence supports a conclusion not only that Child B and Child C do not want there to be any changes to their current circumstances, but that there is a risk of significant distress and anxiety on Child B’s part if changes are made. The husband’s submissions in relation to that issue were to the effect that the children would cope with any change provided it was agreed to and supported by both parents. Self-evidently, that will not happen.

102The husband’s view appears to be that Child B’s anxiety stems from her adopting the views and concerns of the wife, including the wife’s antipathy towards him. While I am prepared to accept that the husband genuinely holds that view, there is no evidence to support it. Indeed, the uncontested evidence of the psychologist who is assisting Child B appears to contradict it.

103I conclude that a change in the children’s current circumstances as proposed by the husband would impact negatively on them; Child B in particular. That conclusion, and the long-standing nature of the present arrangements coupled with the clear expression of the children’s wishes that they remain in place, weigh heavily in the determination of the appropriate outcome in this matter.

104There are no particular practical difficulties or expenses associated with the children spending time with the husband such as would substantially affect their right to maintain personal relations and direct contact with him on a regular basis. Such practical difficulties as there are do not mean that the children are not able to spend regular time with the husband. While the husband sought to suggest otherwise by reference to his work commitments in the seminar and [his] business which he runs with his new wife, he acknowledged that he is within reason able to plan his work commitments up to 12 months in advance and that he runs weekend seminars on average no more than 10 times each year.

105While the husband consistently expressed a view that the present arrangements “do not work” given his business and other commitments, the evidence does not support that view. I am satisfied that the husband is able to make the current arrangements work in a practical sense if he chooses to do so. His priorities, of course, are a matter for him.

106Both parties have an appropriate capacity to provide for the needs of the children including their emotional and intellectual needs, albeit through their different personal attributes, strengths and weaknesses. Neither would suggest that the other did not have something to offer the children.

107Both parties have, in a broad sense, appropriate attitudes to the responsibilities of parenthood. That said, neither is without fault in that regard.

108The wife has failed at times to shield the children from her negative views of the husband. She and the husband must both accept some responsibility for the stresses experienced by Child B as outlined in the reports of Ms D.

109While I do not doubt the sincerity of the husband’s expressions of his love for the children, nor that he demonstrates appropriate responsibility when they are in his care, the position which he expressed consistently until his closing submissions is a matter of concern. Up to that point, and even during cross-examination at trial, he had adopted a firm position that orders in relation to the children’s time with him were an “all or nothing” proposition; either orders were to be made whereby the children would spend equal time with both parents or he would withdraw from their lives and not spend time with them at all. In speaking with the Family Consultant, he made it clear that he would pursue orders for equal time regardless of the children’s expressed wishes.

110In his email to the wife sent on 13 February 2017, having set out two alternative options for the children to spend equal time with each parent, he said:

The point is this

The only two choices are…

The children have no involvement with me until they reach an age where they can chose (sic) for themselves.

Or

Option 1 or 2 from above.

111He went on to say:

I understand my thoughts and beliefs may not make sense to you, they may be frustrating to some degree. And whilst I could attempt to explain to both you and the court how I have come to this conclusion, I have no intention of doing so (emphasis added).

112Given the husband’s strenuous denial that he had any intention of behaving in a manipulative fashion in sending that email or similar communications, it is difficult to understand how his expressed position could be in any sense child focused. Indeed, the husband’s comments in submissions around this issue were primarily focused on himself.

113In my view, the husband’s expressed unwillingness to participate fully in the court process, which by its nature was the process through which decisions regarding his children were to be made, reflects poorly on his capacity and willingness to fully meet the responsibilities of parenthood. His expressed unwillingness to explain his thinking to the wife or to the court, if genuinely not intended to be manipulative, indicates at the very least a focus on his own needs, wants, and convenience rather than the needs and wants of the children.

114That said, it is to the credit of the husband that by the conclusion of the trial he had moderated his position, as outlined above, and acknowledged that he could have approached matters in a better fashion.

115In considering the attitude of the parties to the responsibilities of parenthood, there is one further matter that bears mention. On 24 June 2015 orders were made by consent requiring both parties to enrol in, attend and complete the Mums and Dads Forever program. Neither did so. The wife was ordered, again by consent, to enrol in, attend and complete the Women’s Domestic Violence Support Group program; at trial, she told me she had done so. The husband was ordered, by consent, to enrol in, attend and complete the Men’s Behaviour Change program at Relationships Australia. He did not do so.

116Neither party offered a satisfactory excuse for their failure to comply with those orders. Had they complied with the orders to which they consented they may each have derived benefit from the programs, to the benefit of their children.

117I propose to order the parties again to each attend the Mums and Dads Forever program. I expect them to comply with those orders.

118There is no present family violence order and any such issues, as have been raised in the past regarding family violence prior to the parties separation, do not in my view impact on the appropriate orders to be made in this case.

119Both parties agree that it would be preferable to make orders that would be least likely to lead to the institution of further proceedings in relation to the children.

Conclusion

120The evidence supports a conclusion that the children are happy and well-settled in the primary care of the wife, that their relationship with the husband is being maintained by the time they spend with him under the present arrangements and that they do not want those arrangements to change. For those and the other reasons outlined above, I propose to make orders substantially in the terms sought by the wife.

121I propose also to make orders to facilitate both parents taking the children on holiday in the terms broadly agreed by the parties during the trial.

122The husband sought orders restraining either party from moving other than to an adjacent suburb and requiring each to notify the other about any new partner. These issues were not pressed at trial, and no evidence was lead in relation to them. I do not propose to make those orders.

Proposed orders

123Subject to any submissions as to form, I propose to make the following orders:

1.All previous parenting orders be discharged.

2.[Child B] born [in] 2004 and [Child C] born [in] 2006 (“the children”) live with [Ms Flynn] (“the Applicant”).

3.The children spend time with [Mr Saul] (“the Respondent”) as follows:

(a)during school terms:

(i)each alternate weekend from after school Friday to the commencement of school on Monday;

(ii)the week immediately following the Respondent’s weekend time with the children from:

(A)after school Monday until 6.00 pm, with the wife to collect the children from the husband’s home at the conclusion of time spent; and

(B)from after school Wednesday until the commencement of school on Thursday;

(iii)the week immediately following the Applicant’s weekend time with the children from:

(A)after school Monday to the commencement of school on Tuesday; and

(B)after school Wednesday to 7.15 pm, with the wife to collect the children from the husband’s home at the conclusion of time spent;

(b)during school holiday periods:

(i)for half of the school holidays in blocks of three day periods, alternating between the parties;

(ii)where the children are to be on holiday outside of the Perth Metropolitan area, either party can nominate to spend time with the children for a period of seven (7) consecutive days giving the other party no less than 35 days written notice of their intention to take such a holiday;

(c)on special occasions as follows:

(i)on Father’s Day from 9.00 am until 5.00 pm or such further time as is agreed;

(ii)on the Respondent’s birthday for no less than four (4) hours with the times to be agreed between the parties;

(iii)on the children’s birthdays for no less than three (3) hours with the times to be agreed between the parties;

(iv)in each alternate year commencing in 2018, from 4.30 pm on Holy Saturday to 4.30 pm on Easter Monday and in each intervening year commencing in 2019, from 4.30 pm on Holy Thursday to 4.30 pm on Holy Saturday, unless otherwise agreed; and

(v)in 2019, and every odd year thereafter, from 5.00 pm Christmas Eve until 5.00 pm Boxing Day, unless otherwise agreed.

4.Where the Respondent’s time with the children falls on the following occasions then his time with the children be suspended and the children spend time with the Applicant as follows:

(a)on Mother’s Day from 9.00 am until 5.00 pm;

(b)on the Applicant’s birthday for no less than four (4) hours, with the times to be agreed between the parties;

(c)on the children’s birthdays for no less than three (3) hours, with the times to be agreed between the parties;

(d)in each alternate year commencing in 2019, from 4.30 pm on Holy Saturday to 4:30 pm on Easter Monday and in each intervening year commencing in 2018, from 4.30 pm on Holy Thursday to 4.30 pm on Holy Saturday, unless otherwise agreed; and

(e)in 2018, and every even year thereafter, from 5.00 pm Christmas Eve until 5.00 pm Boxing Day, unless otherwise agreed.

5.In the event that either party wishes to remove the children from the Commonwealth of Australia for the purposes of a holiday for a period of up to 10 days, or an extended period of up to 21 days if such is in accordance with the wishes of the children, then the departing parent:

(a)by no later than 28 days prior to departure is to provide the other party with a copy of the following documents and information:

(i)the proposed itinerary;

(ii)copies of the proposed flights or travel details;

(iii)copies of the children’s travel insurance details;

(iv)the contact details for where the children will be primarily staying for the duration of the trip including address and the contact telephone number/s at the location; and

(v)in the event the departing parent will not be able to personally supervise the children for the duration of the proposed trip due to work or other commitments, then the details of both the name and the contact telephone number of the person/persons who will otherwise be supervising the children will be provided;

(b)by no later than 7 days after receipt of the information in Order 5(a) above, the party is to advise the departing party if they consent to the proposed travel arrangements;

(c)each party is to keep the other informed of any changes to arrangements;

(d)the parent is to have liberty to remove from the Commonwealth of Australia for the period provided and on the terms and conditions provided; and

(e)the proposed travel is conditional upon there not being a current “Do Not Travel” warning issued by the Department of Foreign Affairs and Trade at the time of departure in relation to the proposed destination.

6.The parties are to facilitate liberal telephone or other electronic contact between the other party and the children, when the children are in that parties care.

7.The parties each enrol in, attend and complete the Mums & Dads Forever Programme, if considered suitable by the provider of the programme and provide written confirmation of such enrolment, attendance and completion of the said programme to the other party.

8.All outstanding applications and responses otherwise be and are hereby dismissed.

9.All documents produced by named persons pursuant to subpoena be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from this order.

10.In relation to material tendered as an exhibit into evidence in these proceedings and absent the filing of any Notice of Appeal:

(a)all parties must collect the exhibits tendered by them (“their exhibits”), from the Chambers of Justice O’Brien at least 28 days, and no later than 42 days, from today’s date;

(b)all parties must contact the Chambers of Justice O’Brien 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.

I certify that the preceding [123] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate
24/05/2017