GLENN and FRASER
[2020] FCWA 22
•24 FEBRUARY 2020
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
LOCATION: PERTH
CITATION: GLENN and FRASER [2020] FCWA 22
CORAM: DUNCANSON J
HEARD: 18 FEBRUARY 2020
DELIVERED : Ex tempore
FILE NO/S: PTW 1437 of 2011
BETWEEN: MS GLENN
Applicant
AND
MR FRASER
Respondent
Catchwords:
CHILDREN - where the mother discontinued her application - child's views - where it is in the best interests of the child to live with the father and spend time with the mother
Legislation:
Family Court Act (1997) (WA) s 66C, s 70A
Category: Reportable
Representation:
Counsel:
| Applicant | : | No Appearance |
| Respondent | : | Self-Represented Litigant |
Solicitors:
| Applicant | : | Self-Represented Litigant |
| Respondent | : | Self-Represented Litigant |
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 Glenn & Fraser has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).
INTRODUCTION
1These proceeding concern [M], who is 15 years of age. M lives with the father, [Mr Fraser]. M does not currently spend time with the mother, [Ms Glenn].
2The proceedings were set down for trial on 18 February 2020, however on 17 February 2020 the mother filed a notice of discontinuance. In her notice the mother discontinued her application for final orders filed on 9 September 2014. She added some additional information to the notice of discontinuance which indicated that she would not be attending the trial. She also expressed concerns regarding M's wellbeing which I have been unable to verify.
THE ORDERS SOUGHT
3The orders sought by the father are contained in two documents handed up in Court today. He seeks "100% authority and care" of M "in all matters legal and otherwise". He states M seeks to be able to choose when he can see the mother. The father asks that the mother contact M by phone to arrange her visits and she should not "ambush" him. M also wishes to leave a visit if he feels unsafe or uncomfortable.
4The father seeks to be able to take M overseas, to be able to change his name, to apply for a passport and to alter his birth certificate to include the father's name.
FAMILY BACKGROUND AND SHORT HISTORY
5By way of brief background the mother and the father commenced a relationship in about 2001. They separated in 2005 although they continued in a relationship for a period of time until it ended finally in 2009. Both parties have children from a previous relationship.
6M was born [in] 2004. He has been in the father's sole care since October 2013. M has not spent meaningful time with the mother since 2017.
7[Ms B] was appointed Single Expert Witness in the proceedings and she provided two reports, the most recent dated 17 May 2019.
THE EVIDENCE
8The trial proceeded on an undefended basis. The father relied on his affidavit filed 24 January 2019.
THE LAW
9These proceedings are determined under Part 5 of the Family Court Act 1997 (WA) ("the Act").
10In reaching my decision I will be guided by the objects of Part 5 and the principles underlying those objects.
11In deciding whether to make a particular parenting order, I must regard the best interests of M as the paramount consideration. Section 66C sets out how I determine what is in a child's best interests. I must consider the matters set out in subsections (2) and (3), being the primary and additional considerations respectively.
PARENTAL RESPONSIBILITY
12Pursuant 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.
13Equal shared parental responsibility imposes an obligation upon them to consult as to major long-term issues regarding the child and to make a genuine effort to come to a joint decision about such an issue. Long-term issues are issues about the care, welfare and development of a child of a long term nature including issues about:
(a)the child’s education (both current and future); and
(b)the child’s religious and cultural upbringing; and
(c)the child’s health; and
(d)the child’s name; and
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
14The 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 are reasonable grounds to believe a parent has engaged in abuse or family violence. There was family violence between the parties in their relationship. The presumption does not apply in the circumstances of this case.
15The father seeks an order for sole parental responsibility for M.
PRIMARY CONSIDERATIONS
the benefit to the child of having a meaningful relationship with both of the child's parents
16M has a meaningful relationship with the father and it is to his benefit that it continues. M has not spent meaningful time with the mother since August 2017 and his relationship with her at this time is not a meaningful one.
the need to protect the child from physical or psychological harm from being exposed to abuse, neglect or family violence
17The parties' relationship was marred by drug use and family violence. There was significant involvement with the Department for Child Protection (as it then was) who substantiated harm in respect of M by the mother in 2011.
18In 2012 a safety and wellbeing assessment was carried out but did not substantiate harm to M in the father's care.
19Both parties made significant allegations against the other. In evidence the father assured the Court that there is no drug use by him and there is not a need to protect M from harm in his care.
THE RELEVANT 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
20The father's position is that M does not wish to be "ambushed" by his mother at school. M wishes to be able to choose when to see her and wants the visits with her to be arranged by phone. Ms B provided some independent evidence as to M's views and she reported that it seemed to her that M did not desire to live with the mother and preferred to live with the father.
21Ms B reported that M was committed to remaining in his current home environment with his father and he said in respect of where he wished to live, "Dad, his house feels homey, he's just a good dad".
22As to M's views regarding spending time with the mother, Ms B sets out those views which would indicate that M did not necessarily feel safe and he was unsure when he wanted to see her. Ms B reported as follows:
39The child in respect of spending time with the mother said, "I am not sure, I don't even know. If her house felt safe, if she was safe. If she had a good vibe to her." He went on to say, "I don't know, I want to see her when I want to see her. When the time is right, when I feel like seeing her."
40In terms of communicating with the mother he said, "Yeah I would – probably not quite sure. Maybe if she called, I would pick up, not if she called every 5 minutes. But if she called once per day. Maybe like 6 o'clock at night. I don't want to hear stuff about dad, stuff about me, how are you doing".
41The child desired to convey the following message to the mother, "I love you I just want you to change how you act and appear to other people."
(errors as original)
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)
23M has a close relationship with the father. He does not have a close relationship with the mother. The nature of the relationship with the mother is summed up by his views as reported above.
24M sees his maternal grandparents and his maternal half‑brother. The father deposed that M has a strong attachment to his maternal grandparents. He has a good relationship with the father's extended family including the father's children and grandchildren.
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; and
the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child
25The father has made decisions about M's major long-term issues and has maintained M. The mother has not had an opportunity to participate in making those decisions in relation to M.
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
26It is not proposed that there be a separation of M from the father. To do so would be detrimental to him as he is currently settled in the care of the father and also at home and at school.
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
27There is no practical difficulty in M spending time with the mother, except he very clearly states that he does not wish her to ambush him at school, and if visits are to be arranged they should be arranged in advance by phone.
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
28The father deposed and gave oral evidence to the effect that he is capable of providing for the needs of M. M attends [High School A] and is in Year 10. He is struggling with some subjects, but may attend TAFE and hopes to [gain an apprenticeship].
29M's health difficulties are well managed at this time. M has several friends, he plays sport and has a part-time job. The father described him as "a fun, intelligent and very normal teenager". These matters would indicate that the father is providing well for his needs. I am unable to make any finding as to the mother's capacity to provide for his needs.
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
30M is 15 and half years of age.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
31The father stated that if M wished to see the mother he would facilitate that. He indicated he would encourage and promote M's relationship with the mother.
any family violence involving the child or a member of the child's family
32 M is not currently exposed to any family violence.
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
33There is a family violence order in existence between the parties which protects the mother from the father. The order was made on 13 December 2019 for a period of two years.
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
34It would be in M's best interests that these proceedings be concluded as he has been the subject of Family Court proceedings for many years.
CONCLUSIONS
35Having considered all of the evidence in the context of the primary and additional considerations, I have come to the conclusions set out below.
Parental responsibility
36I shall make an order that the father have sole parental responsibility for M. I am satisfied that such an order is in M's best interests. He has not spent time with the mother for some years, she is not involved in his care and the parties do not communicate.
Living and spend time arrangements
37I consider it would be in the best interests of M that he live with the father. An order in these terms clearly accords with his wishes and continues the existing arrangement.
38I shall make an order that M spend time and communicate with the mother in accordance with his wishes. I do so because he is 15 and half years of age and I have given weight to his views. To ignore or disregard them would have the potential of causing harm and confusion to him. M's ongoing stability and continued happiness are significant factors in my decision.
Passport for the child
39The father seeks orders to enable M to travel and to obtain a passport for him. There will be an order for sole parental responsibility to the father, but I will make a separate order regarding the passport because the father indicated today that it was unlikely the mother would cooperate with him in obtaining a passport.
THE ORDERS
40I make the following orders.
1All previous parenting orders concerning the child, [M] born [in] 2004 be discharged.
2The father, [Mr Fraser] have sole parental responsibility for the child.
3The child live with the father.
4The child spend time and communicate with the mother, [Ms Glenn] in accordance with his wishes.
5The father have sole parental responsibility for obtaining a passport for the child and to that end the necessity for the consent of the mother to the issue of a passport to the said child be dispensed with.
6All extant applications be otherwise dismissed.
7All 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.
8In the event of an appeal being lodged prior to the expiration period of 42 days, paragraph 7 above does not apply.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
RM
Associate24 FEBRUARY 2020
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