GLANTZ and PLESKOT

[2022] FCWA 84

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: GLANTZ and PLESKOT [2022] FCWA 84

CORAM: DUNCANSON J

HEARD: 1 APRIL 2022

DELIVERED : 11 APRIL 2022

FILE NO/S: [Redacted]

BETWEEN: MR GLANTZ

Applicant

AND

MS PLESKOT

Respondent

Catchwords:

CHILDREN - undefended proceedings - where there has been family violence perpetrated by the father against the mother - risk to the child - where it is in the child's best interests that the mother have sole parental responsibility for her and she lives with the mother - case turns on its own facts

PROPERTY - undefended proceedings - where it is found that a de facto relationship between the parties did not exist

Legislation:

Family Court Act 1997 (WA) s 66, s 70A, s 205ZG
Interpretation Act 1984 (WA) s 13A

Category: Reportable

Representation:

Counsel:

Applicant	:	No Appearance
Respondent	:	Self-Represented Litigant
Independent Children's Lawyer	:	Ms R Watson

Solicitors:

Applicant	:	Self-Represented Litigant
Respondent	:	Self-Represented Litigant
Independent Children's Lawyer	:	Baily Family Law

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

Nil

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Glantz and Pleskot has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).

1These proceedings concern the child [Child A] who is six years of age. She is the child of [Mr Glantz] the father and [Ms Pleskot], the mother. Child A lives with the mother and has not spent time with the father since March 2019.

2The proceedings also concern financial matters.

SHORT PROCEDURAL HISTORY

3The father commenced these proceedings on 24 January 2018, when he filed an initiating application seeking financial orders. He filed an amended initiating application on 16 April 2018 in which he also sought parenting orders.

4On 23 September 2019, an order was made requesting the appointment of an Independent Children’s Lawyer ("ICL"). Three solicitors have acted in this capacity during the proceedings.

5On 20 February 2020, [Dr A] was appointed single expert witness by consent to prepare a report on terms of reference referred to in the orders. Dr A provided her first report dated 6 June 2020.

6A trial listed to commence on 21 September 2020 was vacated. On 27 October 2020 orders were made, including an order that the father undergo broadscreen drug urinalysis testing within 24 hours and undergo random drug urinalysis testing within 24 hours of a request by the ICL. Dr A was requested to provide an updated report. Further orders were made including that the orders dated 20 February 2020, in terms of which Child A was to spend time with the father at [Contact Centre A] be suspended. An order was made for her to spend time with the father, supervised by either [Supervision Service A] or [Supervision Service B].

7On 6 April 2021, an order was made that as soon as practicable the father undergo hair strand drug analysis testing at his cost. The father did not strictly comply with this order.

8The proceedings came before the Court on 28 July 2021. The father attended but left before the conclusion of the proceedings. The trial was expedited. The proceedings were listed for a readiness hearing on 14 October 2021 and orders were made for the filing of documents.

9The mother filed her trial documents. The father did not comply with the orders dated 28 July 2021 to file his trial documents.

10On 14 October 2021, it was ordered that the time within which the father should comply with orders dated 28 July 2021 be extended to 19 November 2021. A further order was made in the event the father failed to file his documents on time, the mother may apply for leave to proceed on an undefended basis or for other appropriate orders.

11The father did not comply with the orders dated 14 October 2021 to file documents. On 25 November 2021 the mother filed an application in a case in which she sought an order that she have permission to proceed on an undefended basis.

12On 2 February 2022, it was ordered that the time within which the father shall comply with orders dated 28 July 2021 be extended to 24 February 2022. It was ordered that in the event he failed to do so, the mother have leave to proceed on an undefended basis.

13It was further ordered that as soon as practicable, the father undergo hair strand drug analysis testing, the cost of which was to be borne by Legal Aid WA.

14The proceedings were adjourned to 11 March 2022 with the parties to attend by telephone. The father did not attend, although the Court endeavoured to contact him. He had not complied with orders to file documents. The father contacted Chambers by telephone after the hearing.

15Rule 172 of the Family Court Rules 2021 (WA) ("the Rules") provides:

172.Failure to comply with legislative provision or order

(1)If a step is taken after the time specified for taking the step by these rules, the regulations or a procedural order, the step is of no effect.

(2)If a party does not comply with these rules, the regulations or a procedural order, the court may -

(a)dismiss all or part of the case; or

(b)set aside a step taken or an order made; or

(c)determine the case as if it were undefended; or

(d)make any of the orders specified in the Table to rule 171; or

(e)order costs; or

(f)prohibit the party from taking a further step in the case until the occurrence of a specified event; or

(g)make any other order the court considers necessary, having regard to the main purpose of these rules.

16Rule 195 provides:

195.Failure to attend court events

(1)If an applicant does not attend a procedural hearing, the court may -

(a)dismiss the application; or

(b)make an order for the future conduct of the case.

…

17Having regard to the father's failure to attend the procedural hearing on 11 March 2022 and to comply with procedural orders to file documents, it was ordered that the mother have permission to proceed on an undefended basis. The proceedings were listed as an undefended trial on 1 April 2022.

18Dr A provided an updated report dated 25 March 2022.

19On 1 April 2022 the father's application filed 24 January 2018 was dismissed.

THE ORDERS SOUGHT

The orders sought by the Independent Children’s Lawyer

20Ms Watson appeared for the ICL at trial. The orders sought by the ICL are contained in a minute of proposed final orders attached to the ICL's papers for the Judicial Officer lodged 30 March 2022.

21The ICL seeks orders including that:

•all previous parenting orders be discharged;

•the mother have sole parental responsibility for Child A and that Child A live with her;

•in the event the Court considers it to be in Child A's best interests, the mother shall facilitate Child A receiving cards and letters from the father on four occasions each year, facilitate Child A sending cards and letters to him, provide him with copies of Child A's school reports, duly redacted, and once a year the mother should provide the father with photographs of Child A and notice of any major health issues relating to her;

•the mother keep Child A's passport in her possession, and she be at liberty to renew the passport without the consent of the father; and

•the mother be at liberty to remove Child A from the State of Western Australia or the Commonwealth of Australia for the purpose of holidays.

22The ICL did not press an order that the mother be restrained from changing Child A's principal place of residence outside the Perth Metropolitan Region without the consent of the father.

23The ICL further proposed injunctions restraining the father from approaching the mother and Child A, and from removing Child A from the care of the mother or any third party.

The parenting orders sought by the mother

24The parenting orders sought by the mother are contained in a minute of final orders sought filed 11 August 2021. The mother seeks an order that she have sole parental responsibility for Child A, and that Child A live with her and have no contact with the father. The mother seeks an order for the release of Child A's passport to her.

25The mother seeks orders that without permission of the Court or the father, she be at liberty to:

•travel overseas with Child A;

•relocate with Child A within or outside the Commonwealth of Australia; and

•renew Child A's passport.

FAMILY BACKGROUND AND SHORT HISTORY

26The mother was born [in] 1974 and is 47 years of age. She is engaged in home duties. The father was born [in] 1981 and is 40 years of age. He is a [barista]. The parties met in 2007 and became friends. At that time and thereafter both parties were in relationships with other persons.

27The parties travelled together on occasions, including in 2014 when they travelled around [Asia] as friends. The mother deposed:

21.The Applicant and I were always just friends and occasionally travelled together and had sex. We did not have permanent living arrangements ever. The basic matters were always separated.

(as per the original)

28In late 2014 the mother became pregnant. She returned to Australia and occupied a property she owns at [Property A]. At that time the father had no accommodation, and he rented a room from the mother.

29Child A was born [in] 2015.

30During the time the father rented a room at the mother's home, the mother cared for Child A. The father worked and regularly stayed with his girlfriends overnight.

31The mother described the arrangement of the parties as one of housemates only. She deposed the father spent little time at the house and often spent time with his girlfriend.

32The mother said the father used drugs during the time he lived at her home.

33The mother said she asked the father to leave the home on several occasions. He did so in September 2016.

34In December 2016, the father went to the mother's house. The mother deposed he had been drinking and appeared intoxicated. He kicked, hit and pushed the mother who suffered injuries and required hospital treatment.

35The mother said that in 2017 the father told her she would die soon, and he would have her house and Child A.

36The mother obtained a Violence Restraining Order against the father which was in place between May 2017 and March 2018.

37In July 2017, the father spent time with Child A, supervised at the mother's request. Child A did not spend regular time with him.

38The father did not comply with orders made 31 July 2018 to do all things necessary to facilitate the issue of a passport for Child A, to enable her to travel overseas for a holiday.

39The father married in March 2019. He has a child from that marriage, and another child who lives in [Europe].

40Child A spent time with the father in early March 2019 but started bed wetting and became distressed. The mother deposed that Child A made a disclosure that the father had kissed her on the vagina. A mandatory report was filed with the Department of Communities. The Department's inquiry found that Child A was not sexually harmed by the father due to the absence of evidence.

41The mother deposed the father attended her home uninvited on various occasions. He was abusive to her, vulgar and insulting. He tried to force entry to the home. The mother was terrified and scared. On occasions he parked his car opposite her home.

42At Christmas 2019, the father banged on the mother's door at 3.00 am.

43In June 2020, the father parked in front of the mother's home, kicked the garage door and repeatedly screamed obscenities. The mother called the police.

44On 27 October 2020, an order was made suspending a previous order that Child A was to spend time with the father at Contact Centre A and providing for supervised visits to take place between Child A and the father. Visits did not take place.

45In February 2021, the father banged loudly on Child A's bedroom window. The mother thought the glass would break. She deposed she and Child A were petrified. The mother deposed the father screamed "in a deep, creepy and haunting voice" and he called out "[Child A] I am coming for you".

46On 5 March 2021, an interim Violence Restraining Order was issued by [a court of another jurisdiction], which became final [in] April 2021.

47In June 2021, the father entered the mother's property. He subsequently pleaded guilty to a breach of the restraining order.

48On 2 February 2022, an order was made that the father undergo hair strand drug analysis testing. The father completed the test on 2 March 2022. The test was positive for cannabinoids/THC. The father told Dr A in a voicemail message that the amount indicated in his hair is from when he was exercising in a garage with friends who smoke.

49In evidence, the mother said she believes the father is currently in [Europe].

THE TRIAL

50The trial proceeded on an undefended basis. The mother relied on her trial affidavit filed 24 September 2021, a minute of final orders sought filed 11 August 2021 and a financial statement filed 28 September 2021.

51The mother gave oral evidence. I consider she was a truthful witness and that her evidence was reliable.

52The ICL relied on the affidavits of Dr A filed 16 June 2020 and 29 March 2022 to which are annexed her said reports. Dr A was not required for cross-examination.

THE LAW

53These proceedings are determined under Part 5 of the Family Court Act 1997 (WA) ("the Act").

54In reaching my decision I will be guided by the objects of that Part and the principles underlying it as set out in s 66.

55In deciding whether to make a particular parenting order, s 66A directs a court to regard the best interests of the child as the paramount consideration. Section 66C sets out those matters which the court must consider in determining what is in the child's best interests.

56I must consider the primary and additional considerations. Section 66C(2) sets out the primary considerations, which are the benefit to the child of having a meaningful relationship with both of the child's parents, and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

57Section 66C(3A) provides that in applying the above primary considerations the court is to give greater weight to the need to protect the child from harm.

Parental responsibility

58Pursuant to s 70A of the Act, when making a parenting order in relation to a child, the court must apply a presumption that it is in the child's best interests for the parents to have equal shared parental responsibility for the child.

59The presumption that it is in the child's best interests for the parents to have equal shared parental responsibility for the child does not apply in circumstances where there where there are reasonable grounds to believe a parent has engaged in abuse or family violence.

THE PRIMARY AND ADDITIONAL CONSIDERATIONS

60Child A has a meaningful relationship with the mother, and it is to her benefit that it continues. She does not currently have a relationship with the father and any benefit to her of such a relationship must be weighed against the need to protect her from harm.

61There is not a need to protect Child A from harm in the care of the mother. There is a need to protect her from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence perpetrated by the father. The father has perpetrated family violence against the mother. Child A has been exposed to it. The mother said the father hates her, and he would hurt Child A if that hurt her.

62In her first report, Dr A said:

76.The father reported many negative aspects of the mother and was particularly focused on that the mother was psychiatrically unwell. This was not the finding of the current SEW assessment and not the opinion that I formed given the information available to me. In my opinion, the fathers negative attitude towards the mother does not bode well for the future parenting of the child [Child A].

(as per the original)

63Dr A also expressed concern about the father's anger towards the mother and his drug use and denial of drug use. In her opinion, the father required further evaluation by way of a consultant psychiatrist to assess further aspects of the father's personality. That evaluation did not take place notwithstanding Dr A's recommendation that it do so.

64In her second report, Dr A stated the mother reported a high degree of fear for her own safety and the safety of Child A. Dr A held concerns about the father's continued negative view of the mother.

65The father used illicit substances and Dr A reported the mother genuinely fears for her safety and that of Child A for this reason. Dr A reported the mother described instances when the father used drugs which led to violence and extreme aggression.

66The father has not strictly complied with previous orders for drug testing.

67Dr A reported that the mother continues to be fearful of the father as he has attended her residence on numerous occasions presenting as abusive and aggressive.

68Having regard to all of the evidence including that to which I have referred above, I find that the father poses an unacceptable risk of harm to Child A if she spends time or communicates with him on an unsupervised basis.

69Child A has a close and loving relationship with the mother and her partner, [Mr B]. The mother has made decisions about major long-term issues about Child A and has maintained her. The mother receives child support of $20 per fortnight from the father.

70The orders proposed by the mother and supported by the ICL are that Child A lives with her. There is practical difficulty and expense of Child A spending time and communicating with the father. This arises because supervision would be required and previous orders for drug testing have not strictly been complied with. The mother has a good capacity to provide for Child A's needs on all levels. She has acted responsibly towards her. The father's behaviour is uncontrolled, and he has not complied with Court orders.

71There has been family violence between the parties and there is currently a family violence order in place.

72It would be preferable to make final orders in these proceedings and to conclude them as this is an outcome which is in the best interests of Child A.

73As to any other relevant matter, the mother is from [Europe]. She has relatives there. The mother wishes to travel with Child A and to have the ability to relocate either within or out of the Commonwealth of Australia. In all the circumstances I consider the mother should have the freedom of movement she seeks. It will not impact on Child A's relationship with the father, which at this time is non-existent.

CONCLUSION

74Having considered the evidence in the context of the primary and additional considerations I have come to the following conclusions as to the orders which are in the best interests of Child A.

The parenting orders

75There has been family violence between the parties. Accordingly, the presumption that it is in the best interests of Child A that her parents have equal shared parental responsibility for her does not apply. It is clear the parties could not consult as to major long-term issues regarding Child A and make a genuine effort to come to a joint decision. I am satisfied that it is in the best interests of Child A that the mother have sole parental responsibility for her and I intend to so order.

76Child A has lived with the mother and been cared for by her since birth. I intend to order that Child A live with the mother.

77I have considered the circumstances and the history of this matter very carefully. There is a need to protect Child A from physical and psychological harm perpetrated by the father as set out above.

78It is not in Child A's best interests to order that she spends time with the father as he poses a risk to her and the mother by reason of his aggression and drug use. Any benefit to Child A of a meaningful relationship with him is outweighed by the risk of harm he poses to her and to her primary carer.

79I shall order that there be written communication and the provision of information as proposed by the ICL to which the mother consented.

THE PROPOSED ORDERS

80I propose to make the following orders.

1All previous parenting orders be discharged.

2The Respondent, [MS PLESKOT] have sole parental responsibility for the child, [CHILD A] born [in] 2015 ("the child").

3The child live with the Respondent.

4The Applicant, [MR GLANTZ] have permission to send letters and cards to the child on four occasions each year, to be approved by the Respondent before passing onto the child.

5To give effect to order 4 above and if requested by the Applicant, the Respondent shall provide an address or post office box number to be used by the Applicant.

6The Respondent have permission to change the child's principal place of residence to a location out of Western Australia and out of the Commonwealth of Australia.

7The Respondent have sole parental responsibility for obtaining passports for the child and subject to any other requirements of the Department of Foreign Affairs and Trade a passport issue to the Respondent for the said child and the necessity for the consent of the Applicant to the issue of a passport be dispensed with.

8The Applicant be restrained and an injunction be granted restraining him from:

(a)entering or remaining in the premises where the Respondent and the child reside or within 100 metres of that place;

(b)removing the child from the care of the Respondent; and

(c)removing the child or causing the child to be removed from her schools, day care facilities, or the care of any third party authorised to supervise the child.

9All extant applications and responses be dismissed.

10Subject to the institution of an appeal by any party or the Independent Children’s Lawyer, the Independent Children’s Lawyer be discharged.

11All subpoenaed documents be returned to source.

PROPERTY

81In his initiating application, the father sought financial orders. His position was that the parties were in a de facto relationship from 2007 to 2016. He sought an order for the sale of Property A and an order that the net proceeds be divided equally between the parties.

82In her response filed 8 June 2018 the mother sought final and interim orders as follows:

1That the Applicant's Application filed on the 21st March 2018 be dismissed on the following basis;

a. That a defacto relationship never existed between the parties;

b.that the Applicant did not make substantial contributions under section 90SM(4)(a), (b), (c) of the Family Law Act 1975.

2That the Applicant pay the Respondents costs of and incidental to the application.

(as per the original)

83The parties were not married. Proceedings for alteration of property interests between de facto parties are governed by s 205ZG of the Act.

84The mother's position was that there was not a de facto relationship between the parties. Although I dismissed the father's application, having regard to the orders sought by the mother, I determined the jurisdictional issue. I did so upon the evidence of the mother which I found to be credible and reliable.

85A de facto relationship is defined in s 13A of the Interpretation Act 1984 (WA) ("the Interpretation Act"). That section provides as follows:

13A.De facto relationship and de facto partner, references to

(1)A reference in a written law to a de facto relationship shall be construed as a reference to a relationship (other than a legal marriage) between 2 persons who live together in a marriage-like relationship.

(2)The following factors are indicators of whether or not a de facto relationship exists between 2 persons, but are not essential –

(a)the length of the relationship between them;

(b)whether the 2 persons have resided together;

(c)the nature and extent of common residence;

(d)whether there is, or has been, a sexual relationship between them;

(e)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;

(f)the ownership, use and acquisition of their property (including property they own individually);

(g)the degree of mutual commitment by them to a shared life;

(h)whether they care for and support children;

(i)the reputation, and public aspects, of the relationship between them.

…

(4)A reference in a written law to a de facto partner shall be construed as a reference to a person who lives, or where the context requires, has lived, in a de facto relationship.

(5)The de facto partner of a person (the first person) is the person who lives, or lived, in the de facto relationship with the first person.

86The matters identified and listed in s 13A of the Interpretation Act are not decisive in identifying the point at which a de facto relationship can be said to have commenced. These matters are indicators of whether or not a de facto relationship exists. They are not essential. They are not exhaustive, and some may or may not be present in the determination of the existing relationship.

INDICIA OF A DE FACTO RELATIONSHIP

The length of the relationship between them

87The parties met in 2007. They were friends and occasionally travelled together and separately. The father rented a room in the mother's home and left the home in September 2016.

Whether the two persons have resided together

88The parties resided in the mother's home between early 2015 and September 2016 when the father rented a room there.

The nature and extent of common residence

89The parties' common residence was the mother's home. The mother described the arrangement as one of housemates. The father spent little time at the home and was often out [engaging in recreational activities]. When the father was at the home, he generally purchased take-away food for himself. He had two shelves in the fridge which he used for his own shopping and items.

Whether there is, or has been, a sexual relationship

90The parties had a casual sexual relationship as a consequence of which Child A was conceived. At the time the father rented a room in the mother's home, the mother had a boyfriend in Europe who subsequently visited her in Australia. The father had girlfriends. The parties agreed his girlfriends would not visit the home.

The degree of financial dependence or interdependence and any arrangements for financial support

91In 2015 the mother received an inheritance which was temporarily placed in the father's European bank account for convenience, as the mother was not present in Europe. The funds were returned to the mother. The father paid rent to the mother and he paid child support to her for Child A. In 2015 the mother gave the father some money in cash to purchase a motor vehicle for the parties to transport Child A safely. The parties kept their finances separate.

The ownership, use and acquisition of their property (including property they own individually)

92The mother purchased Property A in 2004. She paid the mortgage, rates and maintained the property, and paid for repairs and improvements.

The degree of mutual commitment to a shared life

93During the time the father rented a room in the mother's home, she had a boyfriend and he had girlfriends. The parties bought nothing together. The mother said they did not plan a future together.

Whether they care for and support the children

94The parties have one child born during the time the father occupied a room in the mother's home. During that time the mother cared for Child A all of the time. The father was working. The mother deposed that on rare occasions the father offered to change a nappy and she assisted him. The father did not care for Child A at night.

The reputation and public aspects of the relationship between them

95The mother said her friends and family knew she was not in a relationship with the father. He had several girlfriends.

CONCLUSION

96I am not persuaded that the parties' relationship is one which would be characterised as "marriage like". The father occupied the mother's home. He paid rent. The parties otherwise kept their finances separate. They had a casual sexual relationship, and their relationship was one of housemates. They were not committed to a relationship.

97In all the circumstances I conclude this was not a "marriage like relationship". I find that a de facto relationship did not exist between the parties. As I have dismissed the father's application, no further orders are necessary.

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

RM

Associate

11 APRIL 2022