HEADEN and FORBES
[2013] FCWA 51
•20 MAY 2013
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: HEADEN and FORBES [2013] FCWA 51
CORAM: THACKRAY CJ
HEARD: 12-15 MARCH, 3 & 4 APRIL 2013
DELIVERED : 20 MAY 2013
FILE NO/S: PTW 2684 of 2012
BETWEEN: MR HEADEN
Applicant
AND
MS FORBES
Respondent
Catchwords:
CHILDREN – PARENTAL RESPONSIBILITY – Presumption of equal shared parental responsibility does not apply because of family violence – Parents unable to communicate respectfully – Mother has been predominately responsible for the five children – Children will primarily be living with the mother – Children regard the mother as better able to care for them and are therefore likely to have confidence in her ability to make important decisions for them.
CHILDREN – RELOCATION– Application by mother to relocate to New South Wales – Father found to have physically abused the children in the latter stages of the relationship – Children to live with the mother – Mother has extensive family in New South Wales and wishes to care for her ill mother and brother – Mother has greater support network in New South Wales to care for the children – Father says he will not return to New South Wales – Desirable for children to spend time with father who despite past behaviour has many good qualities and has a good relationship with the children – The best arrangement for the children would be if the father also returned to New South Wales – If father elects not to return, the children will have extensive holiday time with him – Relocation permitted.
Legislation:
Family Court Act 1997 (WA), s 66A, s 66C, s 70A(1), s 70A(4)
Category: Reportable
Representation:
Counsel:
Applicant: Ms M Alido
Respondent: Mr N D'Adamo
Independent Children's Lawyer : Ms R Reader
Solicitors:
Applicant: Maree Alido
Respondent: Calverley Johnston
Independent Children's Lawyer : Reader Lawyers & Mediators
Case(s) referred to in judgment(s):
Marsden & Winch (No. 3) [2007] FamCA 1364
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
Introduction
1[Mr Headen] and [Ms Forbes] cannot agree about future living arrangements for their five children. The mother wants to take the children to live in [N town] in New South Wales where her family resides. The father wants the children to remain in [S town], ideally living for much of the time with him, but otherwise with the mother.
Brief background
2The father, now aged 39, was born in New South Wales and is employed on a casual basis as a [technician].
3The mother, now aged 31, was born in New South Wales and cares for the children full-time. She previously worked in hospitality, including as a manager.
4The parties commenced a relationship in 1999. They lived in New South Wales until 2007, when they moved to Western Australia. They were never married.
5There are five children of the relationship, [Bridget] born in April 2001, now aged 12, [Michael] born in September 2002, now aged 10, [Britney] born in September 2004, now aged 8, [Michelle] born in September 2006, now aged 6, and [Evelyn] born in November 2009, now aged 3.
6All of the children were born in New South Wales, except Evelyn who was born in Western Australia. Prior to the separation, the children were predominantly cared for by the mother, although the father assumed some responsibility for their care in the latter part of the relationship when the mother took up employment.
7The relationship ended on 7 May 2012 when the mother took the children from [D town], where the family was living, and drove across Australia to her mother’s home in N town in New South Wales. On 15 May 2012, the father commenced proceedings seeking that the children be returned to him in D town.
8The mother permitted the father very regular telephone contact with the children after her departure from D town. Unbeknown to her, the father was also having other forms of communication with the children, especially Bridget.
9On 19 June 2012, the mother sent the father a message, saying that she knew what he had been saying about her to the children and that, thereafter, “all phone calls [to the children] will be on loud speaker so u can not bad mouth and play games with their heads anymore …”
10On 20 June 2012, a few days before what was anticipated to be a substantive interim hearing, the children made disclosures to the mother, and then to the NSW police, concerning physical abuse they said had been perpetrated on them by the father.
11On 5 July 2012, the mother was ordered to return the children to Western Australia, which she did a week later. Following an investigation, the Department for Child Protection (“DCP”), found that the children’s claims were “substantiated”. On 5 October 2012, DCP informed the Court that it had concluded that the children “have experienced physical and emotional harm as a consequence of their [father’s] actions”.
12The father had not been permitted to see the children for some months after their return to Western Australia; however, on 5 November 2012 an order was made allowing supervised visits. These commenced on 15 December 2012 when a place became available at the local supervision centre. By this time, the father had not seen the children for seven months, and Evelyn did not know him when they were reunited.
13The proceedings were expedited to trial in March/April 2013. During the course of the trial, consent orders were made for both parents to attend parenting courses. The father was also required, by the same consent orders, to attend a lengthy anger management program and to enrol at Holyoake or a similar organisation for at least six months to address issues associated with his consumption of alcohol and illicit substances. The mother was required to attend the Mums and Dads Forever program and domestic violence counselling.
14At the conclusion of the trial it was agreed, subject to conditions, that the father could commence seeing the children, unsupervised, but not overnight, pending delivery of these reasons.
The move to Western Australia in 2007
15The evidence did not make clear where the mother and father resided during the first part of their relationship, save that it was in New South Wales. However, from 2003 to 2007 they lived in [C town], in western Sydney.
16The family moved to Western Australia in July 2007. They were struggling financially after the father had been made redundant. The paternal grandmother was living in Western Australia and suggested they come here for a new start to get away from what the father described as “quite a dangerous area” in which they were living. It is unclear where in Western Australia the grandmother was then residing, although it seems most likely she was already in D town, where she operates a brothel.
17The mother had reservations about moving to Western Australia and says she did so only because the father promised he would stop his heavy drinking and consumption of marijuana. The mother said he broke his promise within a week of their arrival.
18In early 2008, the mother and father obtained a 60% interest in a five bedroom home near S town, with the other 40% owned by the State. The property is subject to a Keystart loan, for which the mother and father are both responsible.
19The father had been unable to obtain work after arriving in Western Australia and the family was only able to survive with help from the paternal grandmother and with income from part-time work the mother was able to obtain. The father ultimately obtained work, but was later made redundant again. It seems this time he was out of work for nearly a year.
20The paternal grandmother eventually found some contract work for the father in D town. The father went up there on his own, but returned to S town just in time for the birth of Evelyn. The father was then able to obtain a well paid position as a technician in D town, with accommodation provided. The family moved to D town in early 2010. The S town home was let, albeit the father now claims this was a breach of the contract with the housing authority.
21The cost of living in D town was very expensive and the family had many debts. Their problems were exacerbated when the tenants in the S town home failed to pay rent. These difficulties led to the mother taking up work in D town. The arrangement was that she was responsible for the children during the day, with the father taking over in the late afternoon while she worked in evening jobs, mostly in hospitality. As best I could ascertain, this arrangement commenced some time after September 2010, and continued up until the time of the separation in May 2012. The days and hours of the mother’s work varied depending on where she was working.
22The father’s brother, [William], and his two sons moved from Sydney to live in D town in September 2010, but returned to New South Wales in April 2012. The mother and William did not enjoy a good relationship. There was also friction between the mother and paternal grandmother, although the mother was, for a short time, employed as a receptionist in the brothel. The children nevertheless spent time with the father’s family in D town. Michael, in particular, spent a great deal of weekend time with William and his sons.
23The mother’s last job in D town was at [a recreation centre], where she struck up a friendship with one of the patrons, [Mr Q], who was known to members of the mother’s extended family in New South Wales. The true nature of their relationship was a matter of controversy in the proceedings.
The mother’s departure from D town and events after her forced return
24The mother had become increasingly disenchanted with her life with the father after the move to D town. She had hoped, after they left Sydney, that the father would moderate his use of alcohol and other drugs, which she associated with his poor treatment of her. This had not occurred, and she claimed that the father was not only drinking to excess, but also smoking a synthetic form of marijuana (which is not detected by standard testing). She told the Single Expert that although she had been thinking about leaving the father for years, she “didn’t have the courage” to do so.
25Although her evidence was lacking in detail, the mother claimed she had been subjected, for many years, to both verbal and physical aggression from the father, which had been witnessed by the children. The only incident of violence about which she gave anything approaching a satisfactory level of detail was said to have occurred in D town in March 2012. She claimed that the father threw her around the room, across the bed and into a pram. She alleged that he also destroyed her mobile telephone by throwing it against the wall, damaging the wall in the process. She said that Michelle and Evelyn witnessed these events, and that Michael and Britney also heard what was happening and screamed at the father to “stop and leave mum alone”.
26Apart from this incident, the mother claimed that on other occasions in Port D town, the father had “kicked [her] out of the house on the street”. On these occasions he allegedly told her he had control of the home because it was company owned. She also claimed that the father threatened her by saying things along the lines of “there is no such thing as separation, there is only until death do us part” and that “as long as you do as you are told you have nothing to worry about”. She said he also threatened to keep the children if they separated.
27The father denies all the allegations of violence, although he admits there were “many loud arguments” that the children sometimes witnessed. He mentioned in particular one heated argument in March 2012 which he says related to the mother working later than usual, neglecting the children, receiving test messages from Mr Q and coming home from a ball at 10 am wearing different clothes from those she had left in, and showing signs of having used amphetamines.
28The father otherwise denies being verbally abusive or threatening toward the mother. He further denies the children ever screamed at him to “leave Mum alone”, although he acknowledges they had yelled at both of them to “stop”. The father also denies kicking the mother out of the house, save that he admitted once demanding that she leave the home in S town because he had “discovered she was using drugs again”.
29I do not accept the father’s denials. I consider it more likely that he engaged in greater levels of physical and verbal abuse than he is prepared to concede. I do, however, accept that the mother would also abuse him verbally in the course of their arguments.
30The mother says the children began complaining about being left at home alone with the father while she went out to work in D town. She began to suspect he was mistreating them and she started secretly saving money with a view to leaving. She says that she ended up leaving earlier than planned after Evelyn had to be taken to hospital for what was the third injury sustained at home in a space of just a few months.
31The mother did not even tell her own mother that she had left the father until she was on her way to N town. The journey proved much more expensive than she had expected and she soon ran out of funds. She contacted Mr Q for assistance and he sent her $3,000 to allow her to complete the journey.
32Upon arrival in N town, the mother and the children took up residence with the maternal grandmother and her husband. Conditions in their home were cramped but adequate in the short term. The children, other than Evelyn, commenced at a local school and were settling in very satisfactorily. The children were reconnected with the mother’s large family in New South Wales. After some weeks, the mother leased a suitable, affordable, home in N town, but was ordered back to Western Australia before she could move in.
33As earlier recorded, the father had commenced proceedings on 15 May 2012 for the children to be returned to him in D town. However, on 23 May 2012, he was informed by his employer that his contract would not be renewed and there would be no work for him by the end of June 2012. He said that he had no guarantee of alternative work or housing and, as the cost of living was prohibitive, he could not reasonably ask the Court to order the children to live with him in D town. He said it was for this reason that he entered into discussions with the mother about her remaining in N town, provided she agreed to give him her interest in the S town home. She agreed and, on 29 May 2012, the father signed two informal documents giving permission for the children to remain in New South Wales.
34The father was then advised by his employer that it could provide him with work near Perth. Whether it was because of this, or for some other reason, the father then proceeded with his application to force the mother to return to Western Australia, although this time to S town, not D town.
35In an affidavit, sworn 18 June 2012, the father said he had made efforts to have the S town tenants vacate by 11 August 2012 so as to allow the mother to move back into the home. Acknowledging this might not be possible, as the lease did not end until 3 January 2013, the father claimed there were “many suitable and affordable houses” around S town. The father went on to assure the Court that if the mother returned, he was “willing to provide her with reasonable financial assistance if necessary, to ensure that she can rent an appropriate home …” He also swore that his mother had told him that “she is willing to assist financially if needed …”
36The mother returned to Western Australia as soon as she was required to do so; however, she had nowhere to live and she and the five children had to stay with friends for three weeks until she found accommodation. The father was aware that the mother had returned, but provided nothing to assist her to obtain accommodation, and nor did the paternal grandmother. The father took the view that it was up to the mother to ask for help, notwithstanding the previous offers of assistance. The mother had no sources of income other than social security and the random, very modest, child support paid by the father.
37On 5 September 2012, the mother obtained, ex parte, an interim Violence Restraining Order against the father. There is no evidence of when the father was served with the order but, three days after it was made, his vehicle was involved in a serious rollover on the [main road], near the mother’s home. The mother believes the father was on the way to her home and that, having missed the turnoff, he rolled the car because he was drunk. The father denies drinking prior to the accident, notwithstanding he had spent the afternoon and evening at a friend’s place watching football.
38The father says the accident occurred when his car skidded in gravel just after midnight (coincidentally on his birthday) after he had swerved to miss a “dirty big kangaroo” that he encountered as he was looking at street signs, having missed the turnoff to the home of another friend with whom he was staying. The father did not report the accident that night. He said he was concussed and disorientated and that it had taken a long time to find his way back to his friend’s place on foot. He went to the police station the next day, but was told to make his report “on-line”. The mother later reported to DCP that she had been informed by the police that the father’s car smelled of alcohol, but she did not give evidence in these proceedings that this is what she had been told.
39On 21 November 2012, months after the mother had found her own accommodation, the father’s solicitors wrote to her solicitors offering her the use of the S town home from the expiry of the lease in January 2013. For reasons unexplained, the letter was not forwarded to the mother, who heard about it for the first time in the witness box. She said she would have taken up the offer had she known of it, especially because she had been facing homelessness at the time. In the absence of any response to the letter to the mother’s solicitors, the father moved into the property, where he remained at the time of trial.
40Fortunately, in December 2012, the mother obtained a lease on another five bedroom home in the area. This was not without some difficulty, as she had been advised that her offer to rent the property would be more likely to be accepted if made jointly with a male who had a job. She prevailed upon the brother of her best friend to sign the lease with her, but was then able to secure a lease in her own name by offering an extra $50 per week rent. The father remains suspicious of the mother’s relationship with the male who signed the lease document. The lease expires in December 2013.
The father’s criminal record
41On 3 December 2012, after the order for supervised visits was made, but before they commenced, the father was involved in a late night incident at the Burswood casino. The father says he was set upon by security guards without reason after he responded to taunts from a couple of other patrons. The report provided by the guards differs greatly from the father’s account. In any event, the father claimed to have been injured and was conveyed to Royal Perth Hospital, where he was recorded with a blood alcohol content of 0.112%. The father was charged with common assault and disorderly behaviour in a public place. The father says he has not heard anything further about these charges.
42This was not the first time the father has been involved in such an incident. In 2005, he “argued with a security guard” in a department store in New South Wales after demanding to have an article free of charge which he had noticed had a price tag of “$0.00”. The incident got out of hand and the father ended up pleading guilty to assault occasioning bodily harm. He was given a 12 month suspended sentence. The more serious part of this incident was witnessed by Bridget and Michael. The mother claims the father was drunk at the time, whereas the father said he had had only one drink.
43The father’s (adult) criminal record in New South Wales was received into evidence. It commenced in January 1992, when he was 18 years old, with convictions for larceny and driving an unlicensed vehicle with “plates calculated to deceive”. The following year he was convicted of malicious damage, but an assault complaint was dismissed. In 1997 he was convicted of common assault for which the sentence was periodic detention of three months. One month later, he was convicted of three counts of common assault, destruction/damage of property and contravention of an apprehended domestic violence order. Amongst the penalties for these convictions was six months’ periodic detention, which was reduced on appeal. In 2001 he was convicted of using offensive language in or near a public place or school. In 2005, as already noted, he was convicted of assault occasioning actual bodily harm. He has had no convictions since coming to Western Australia.
Injuries sustained by the children
44As earlier recorded, the mother claimed that the children had not responded well to being left alone with the father in D town. She said they would “cry and beg for me not to go to work and would report to me that [the father] would hit them whilst I was away”. She went on to allege that whenever she raised this with the father, he would say the children were “overreacting”. She also claimed that the children had said the father had been leaving Bridget in charge of the other children and that Bridget had been required to prepare the food, bathe the younger children and put them to bed.
45On the evening of 30 April 2012, while the mother was at work, Evelyn sustained an injury to her forehead. The father says he was washing the dishes when he was told by Britney that Evelyn had hit her head when she fell from a desk in her bedroom. The father says that Michelle and Britney, but not Bridget, were in the bedroom. The father claims there was no bleeding and the “injury didn’t seem to warrant even a Band-aid”. He said Evelyn was comforted and put to bed. First thing the following morning, the mother observed that Evelyn had congealed blood in her hair and she claims she had a 5 cm gash in her forehead.
46The mother immediately took Evelyn and the other children to the emergency department of the local hospital. The mother volunteered in her oral evidence that Britney, then aged 7, told the doctor that the father had hit Evelyn, but Bridget had said this was a lie and that the injury had occurred as described by the father. There is no indication in the hospital file that Britney mentioned the father as being the cause of the injury. The mother’s explanation for this omission is that the medical staff were more concerned about what to do with the wound, and that all five children were present and there was “a lot of stuff going on”, including Evelyn screaming while her matted hair was being pulled from the wound. The mother says she chose to believe Bridget’s version, as she was the older child. She also claims that she put Britney’s version of events to the father and he denied it. When her failure to refer earlier to Britney’s alleged statement was put to the mother in the witness box, she said that she did not want to believe that the father had hurt Evelyn and that she still did not know what to believe. However, she also gave evidence that Bridget told her in June 2012 that the injury had been inflicted when the father threw Evelyn across the room while he was angry.
47The hospital file indicates that the staff measured Evelyn’s wound at 1.5 cm, not 5 cm as the mother claimed, but the notes confirm that the wound required suturing and was too tender to clean thoroughly, which suggests the father’s claim that it did not warrant a Band-aid was false. The notes record that, as Evelyn was a girl, it was worth “a try” suturing the wound, from which I assume there was a risk of a permanent scar if the gash was not sutured. The wound was therefore closed, but the notes record that the mother was warned the result was unpredictable because of the “late suturing”.
48This was the third time in six months that Evelyn had been to hospital with facial injuries. On each occasion it seems she was in the care of the father at the time of the injury. On the evening of 23 December 2011, Evelyn presented with damage to her teeth after allegedly hitting her mouth on a trundle bed. On 9 October 2011, she presented with injuries to her head and mouth after an accident involving a swing. The mother had just gone off to work at her new job when this incident occurred, and she was then called home.
49The medical records also indicated that Michelle had presented at the hospital on the night of 3 June 2010 with facial and dental injuries. No reference was made to this in the evidence (save in passing by a DCP worker who had examined the records). As far as I am aware, the mother had not commenced working by June 2010, and the absence of any reference by her to the incident suggests she accepts the injury was accidental.
50The only other medical record of potential importance relates to Michael’s hospitalisation in March 2011. The boy presented with spinal pain, but denied having experienced any trauma. However, the medical records note the mother’s advice to staff that Michael had undergone a “major change in personality yesterday” while she was at work. Another section of the notes records that Michael “now says [he] can’t remember yesterday but [he was] earlier involved in history giving”. There is no indication in the file that consideration was given to the possibility of Michael having been hurt intentionally.
51The father said in his oral evidence that he had no recollection of Michael going to hospital for a back problem and certainly did not recall him being in hospital for three days (which he was). In any event, the mother’s case did not suggest that Michael’s admission to hospital was related to the father’s behaviour, and the only one of Evelyn’s presentations that she appears to have considered suspicious was the last one on 1 May 2012. However, the mother was understandably concerned about Evelyn having experienced so many injuries in such a short space of time. She considered that, at the very least, the father’s drinking had led to lax supervision and was the reason for him not having taken Evelyn to hospital when she needed treatment (see, inter alia, her remarks in the Case Assessment Conference file note).
52Although the mother’s views about the cause of Evelyn’s injuries on 30 April 2012 have varied over time, I accept that it was the precipitating factor in her sudden departure from D town on 7 May 2012. I note also that very shortly prior to her departure, Evelyn sustained a burn when the father was meant to be supervising her. The father says he had made an open barbeque when Evelyn unexpectedly made a grab for a sausage and received a very small burn on her hand.
53I have referred to all of these hospital visits not because I consider the injuries were necessarily the result of abuse or even poor supervision. Young children do suffer injuries, even when properly supervised. For example, there was passing reference in the evidence to Evelyn having twice sustained minor injury in the care of her mother following separation.
Disclosures made by the children in New South Wales
54According to the mother, the children said nothing following the separation about being abused by the father until 20 June 2012, some weeks after their arrival in N town. However, she claims that on that day the children observed her preparing an affidavit responding to the application for them to be returned to Western Australia. When she told the older children what she was doing, they allegedly asked her whether she knew how their father treated them in D town, and then proceeded to make a variety of disclosures.
55Set out below is a summary of the disclosures said to have been made in June 2012:
• Bridget, Michael and Britney said the father held the three youngest girls by their hair and kicked them in the stomach during March or April 2012;
• Britney said the father kicked her so hard that she fell across the room and he had also thrown her into the bookcase;
• Michael said the father had thrown a broom at him and hit him with the broom so hard it broke, as well as hitting him with a cricket bat and a shovel;
• Michael said the father had thrown sticks and rocks at the children, and aggravated the dogs with a view to having them bite the children;
• Michael and Michelle said the father had locked them out of the house; that Michelle had gone back into the house and hidden under the bed; and that the paternal grandmother had come and collected Michael (the grandmother denied the latter part of the story, saying that the children had only been made to wait outside while the father mopped the floors);
• Michael said he had been left outside while the father was drunk and he was not allowed back in – but that Bridget let him in after the father went to bed;
• Bridget, Michael and Britney said that the father would send them to bed without dinner if they did not clean the house;
• The children said that the father made them throw all of their toys in the bin because they would not clean their rooms (the mother gave no evidence of having seen toys go missing and the father said he only “packed toys up” when the children would not clean their rooms);
• The children said that when the father found out they had spoken with the mother about his behaviour, he would reprimand them the next day;
• Bridget and Michael said the father had threatened to bash and kill them if they told her about things he had done.
56The mother also alleged that the children made claims about the father’s use of alcohol and marijuana, including:
• On numerous occasions the father would be passed out on the couch after smoking marijuana, which he would “chop up” in front of them;
• The father would drink two four-packs of alcohol a night (not a week as the father repeatedly asserted);
• The children had counted up to 16 empty bottles of Wild Turkey the father had consumed in one night;
• Bridget and Michael said the father had borrowed from them to buy alcohol and had threatened not to repay the money if they told their mother (the father admitted he had borrowed from the children, but said it was for bread and milk).
57Michael said he had also seen William and the paternal grandmother smoking with the father. This was not put to William, and the grandmother denied she had ever smoked marijuana near the children, although she said she used to smoke the drug years ago. The Case Assessment Conference fie note recorded the father as saying he had smoked one “cone” of marijuana with his brother six or seven months previously, but that document was not put to him in the witness box.
58The maternal grandmother said she was present in the home in N town at the time the children first made these disclosures. Her evidence provided corroboration of the mother’s claims, but differed in relation to some of the surrounding circumstances. In my view, the differences between the evidence of the mother and maternal grandmother were on fairly peripheral issues, and to the extent there is discrepancy on any matters of significance I considered the evidence of the children’s mother to be the more reliable.
59The mother was genuinely shocked by the disclosures and she telephoned her father for advice about what to do. He recommended that she immediately take the children to the police and not further interrogate them for fear of contaminating their evidence. The mother and the grandmother then bundled the children into a car in their dressing gowns, on a cold winter’s evening, and took them to the local police station.
60The children were seen at the station by [Sergeant P] who recorded that the mother, who was quite distressed, had reported that they had just disclosed to her that the father had been violent to them, and that she had previously been unaware of this. She said the mother claimed she had not pressed the children for information as she was aware the police would be required to speak to them.
61 Sergeant P noted that Bridget told her that the children had previously told the mother about their father’s conduct, but this had caused an argument between the parents which made the situation worse the next time they were alone with the father. Sergeant P said that all the children seemed “well and happy and wanting to talk with Police”.
62In her oral evidence, Sergeant P said that she had not explored the “worst things” that the children reported in this first meeting because all of them were listening in on the conversation. However, she said Bridget and Michael appeared “very deep in thought” when they were telling her what happened. She said they appeared to be really thinking about what they were saying; were thinking about the questions she asked; and did not appear to be “just telling a story”. Sergeant P also gave evidence that the mother appeared quite surprised when Bridget said that the children had previously tried to tell her what had been happening. The mother told Sergeant P that she had been aware of bruises on the children, but was unaware of the real cause.
63On 25 June 2012, Sergeant P spoke with the mother by telephone about progress in the investigation. She said the mother was very distressed about the prospect of having to take the children back to Western Australia. She recorded that the mother said that:
the children have stated such incidents as CAR 1 head been split open by [the father] – treated at hospital. That [the father] broke brooms on them, left them unsupervised at times, made them drink alcohol and at times not fed them.
64Bridget was the child described in the records as “CAR 1”, but Sergeant P was not asked whether she had actually intended to refer in this note to “CAR 5” (Evelyn).
65On the same day, 25 June 2012, Sergeant P recorded that she spoke with Ms Reader, the Independent Children’s Lawyer, who was recorded as saying “it would be easier to have the children returned to Western Australia so the matter could be dealt with”. Sergeant P recorded that she told Ms Reader that the children had not yet been “spoken to” and she was “concerned that if the children returned to Western Australia that they may feel that they are returning to an unsafe environment and may not speak freely”.
66On 6 July 2012 (the day after the mother had been ordered to return the children to Western Australia), Sergeant P asked the mother to arrange for her mother to bring Bridget and Michael to the station for an interview that day. The children were seen by Senior Constable [M], who was considered by Sergeant P to be the most qualified and experienced local officer to speak to children. After Senior Constable M saw the children, she reported to Sergeant P that she had “concerns of domestic violence for all the children”. The Independent Children’s Lawyer was informed of this, and the police file also records that the concerns were to be reported to the NSW child protection authority, who in turn were expected to relay the information to DCP.
67Set out below are Senior Constable M’s notes of her interviews:
On Friday 6th July 2012, S/Cst [M] spoke independently with [Bridget and Michael] (the two eldest children). The children were spoken to separately and one-on-one with S/Cst] [M].
Whilst speaking with [Bridget], she informed S/Cst [M] that “dad, hits [Michael] all the time”. When probed about this comment, she stated that [Michael] was “hit with a rake; with a cricket bat; with his hands; sometimes he throws rocks at him”. She further stated that these blows were struck around the head, face, and torso resulting in bruising. She stated that [Michael] had never been afforded medical attention by their father, rather he was sent to his room, or “put outside to sleep in the cubby house”. She further stated that when [Michael] gets sent outside to sleep, she sneaks food, blankets and pillows out to him as these luxuries are forbidden by their father as punishment (this has occurred more than once). She also said that her father often lights fires around the house, which have on occasion almost set the house alight. She states that [Michael] was blamed for this.
[Bridget] went on to say that her youngest sister [Evelyn] often gets held by the hair and hit by her father (with hands only). She stated that [Evelyn] is currently only two years old, and learning to walk and toilet train. Often [Evelyn] falls over and on at least two occasions has fallen in such a way that she has knocked out her baby teeth on items of furniture. [Bridget] states that these falls caused extensive bleeding and on one occasion, a severe gash to her forehead. She obviously cried when she injured herself, and was bleeding profusely when seen by her father. [Bridget] states that [Evelyn] was beaten for “getting herself out of bed” – she was not afforded medical attention. [Bridget] states that [Evelyn] is also learning to get out of bed and take herself to the toilet but is again beaten for getting herself out of bed – she therefore wets the bed, and then gets beaten for that.
[Bridget] states that she shares a room with [Evelyn], because she ‘needs to protect her’. When asked what she meant by this, she stated “from dad, I lock us in our room and I look after her, and make sure she doesn’t cry. I don’t go to sleep until all the other kids are asleep.”
[Bridget] states that her mother leaves for work as soon as she arrives home from school. [Bridget] then, takes care of the other children while her mother is away. She states that her, father drinks alcohol every day, and “when he gets drunk he gets really angry and we get into trouble”.
[Bridget] also states that [Britney] (7 years) still sucks her thumb. As punishment for this, her father “smacks [Britney] on the face and arms”. She further states that both [Britney] and [Michelle] (5 years) who share a room – are often beaten for making a mess of their room. They too are held by hair. Throughout the interview, [Bridget] was clear and concise in her allegations. At no time did she appear to be embellishing or inventing the story as .she went along. She maintained eye contact the whole time and was able to describe in detail and clearly clarify any points of conjecture. She told S/Cst [M] that she is very scared of her father and does not want to return to WA. She stated she was worried about her brother and sisters and said she was happy living in [N town]. She states she has made new friends at school here, and is happy living with her mum and nan.
S/Cst [M] then spoke to [Michael]. His interview was recorded on hand held voice recorder. He was also very clear and concise with his allegations, all of which corroborated the story of [Bridget].
[Michael] stated his dad often “hits” him. He too described being struck with a plastic cricket bat, a wooden rake, and having stones thrown at him. He told S/Cst [M] that this happens “because I’m sticking up for the girls.” He went on to also describe the beating of his younger sisters, [Evelyn], [Michelle] and [Britney], in fine detail, matching the account provided by [Bridget]. He states that he tries to stop his dad from hurting his sisters, and as a result he gets ‘hit’. He too told of being forced to sleep in the cubby house, and that [Bridget] brings him food when this happens. He said he often shuts his sisters in their bedrooms so their dad will not hurt them, and he is punished for this. He said he gets bruises on his body, and the stones hurt his legs.
He described going shopping with his dad ‘to buy bourbon’. He further stated that on one occasion, the rake broke when he was hit with it, so when they ‘went to buy bourbon, we had to buy a new rake too. We keep it near the air conditioner’.
When S/Cst [M] asked further questions about being forced to sleep outside, [Michael] began to describe the cubby house in detail, telling S/Cst [M] how nice it was and that it was ‘better than the house’ – he stated he didn’t mind sleeping in the cubby house because it was warm where they lived and [Bridget] bought him food. He said sometimes he and his sisters have sleep outs in the cubby house.
When asked if he missed his dad and wanted to see him again, [Michael] stated he did, and further stated, “I only get in trouble when I stick up for the girls”. When asked if mum and dad seemed happy together, he said, “Yeah, before they broke up. But now he calls mum bad words”. [Michael] further states he tries to ‘stick up for mum too’ and that when his father hurts his mother, “I try to get in between .them, but I get thrown away, so I just get on dads back and pull his hair.”
[Michael] was calm throughout the interview. He too maintained eye contact with S/Cst [M] throughout, and appeared to have no issue divulging the information to police. At no time did it appear he was inventing or embellishing any details, or that he had, been, coached to give the version he did.
Police firmly believe both, children are telling the truth about the ongoing assault from their father. When each was asked if they had told their mother about the assaults, they stated, independently, that their father threatened them with further abuse if they told anyone. [Bridget] seemed genuinely afraid to return to WA. [Michael] indicated he was looking forward to going home to see his friends, and it appeared that while he was being truthful about what happened to him, he did not fully understand that his father’s behaviour was wrong, illegal or an excessive form of punishment, and from his understanding, it was normal to be punished for sticking up for girls.
Police believe both children on their initial accounts, and believe their allegations require follow up by WA Police. NSW Police have passed on this information to DOCS who will be liaising with the WA branch of the equivalent organisation in order to kick start investigations in their home town. All information is being passed onto WA police to appraise them of the current situation.
68Senior Constable M was called to give evidence. She confirmed that Michael had no problem in detailing exactly what had happened to him. She commented that Michael seemed “adjusted to the fact it appeared normal or that is what happens when he sticks up for his sisters”.
69Senior Constable M also said she was “amazed” that Bridget and Michael had given “relatively identical versions of what happens at home” and commented that neither “seemed to be making it up or working it out as they went along – they were quite frank and upfront and it was as if this was an everyday thing”. She said that the children had not used identical words, but had provided basically the same information, although she stressed they did not appear “like they were reading from a page”. She said both children were able to describe how the father hit them, and their stories seemed very consistent.
70Senior Constable M said she had concluded that “something was going on”, which is why she referred the matter to the WA Police for investigation. She acknowledged she was not “psychic”, but said she was “convinced” the children were telling the truth.
71The mother says it was because of the children’s allegations that she stopped all communication between the father and the children until an order was made allowing electronic communication, commencing on 16 July 2012. Plans for the father and members of his family to spend time with the children in New South Wales at the end of June 2012 were also cancelled following the disclosures.
Disclosures made by children to police and DCP in Western Australia
72At a hearing on 31 July 2012, a copy of a memorandum from DCP was distributed to the parties advising that until investigations were concluded, DCP would be “extremely concerned” if contact between the father and the children was reinstated. The memorandum recorded that “the children have been noted by [DCP] to be displaying symptoms consistent with excessive distress in response to [the father] making them aware that it is his intention to pick them up and have them live with him”.
73The mother claimed that Bridget was very nervous about the prospect of seeing her father. She said she was having panic attacks to the extent that the mother and the woman with whom they were staying spent much time soothing Bridget, who would wake up screaming in the night. In August/September 2012, the mother also discovered that Bridget was “self-harming”. (Bridget later reported that she had also been secretly self-harming while the family was still in D town).
74The mother said Bridget was also hearing voices and Bridget had contacted Kids Helpline for support. The mother took her to a doctor who diagnosed schizophrenia, even though she did not speak with Bridget. The mother was unhappy with this diagnosis and therefore, with DCP’s agreement, took Bridget to another doctor on 3 August 2012.
75The mother told the second doctor that she wanted something prescribed to assist Bridget deal with her panic attacks and insomnia. The second doctor concluded that Bridget’s problems were “all due to a custody battle that is presently in process”. She went on to say:
There has been concerns that [ Bridget] is hearing voices and a question of her being schizophrenic. She presents as a very normal little girl with an extraordinary amount of emotional stress being placed on her. I doubt that she is mentally ill but does need our support in this difficult time. I would only consider assessing her or referring her regarding these thoughts once the custody case has been heard and settled.
76On 23 August 2012, all the children, except Bridget, were interviewed by investigators from ChildFIRST, who then provided reports to DCP. Bridget was recorded as being “very distressed and would not speak with interviewers”. She told the investigators “she was made to speak to Police in NSW and did not want to talk about her Dad”.
77The records of the ChildFIRST interviews with the other children were somewhat abbreviated, however, details of what was reported back to DCP are set out below.
78Britney told the investigators that all the physical assaults involving her and her siblings occurred while the mother was at work when they were living at D town. She said she was hit every day except Christmas and her birthday, and this included being kicked, slapped, punched, picked up by her hair and thrown. She also witnessed her siblings being slapped.
79Brief details were recorded of three specific incidents reported by Britney. One occurred in the lounge in D town, when the father punched Britney’s leg, leaving a bruise. On the second occasion, the father kicked Britney’s “bum”, leaving “a tiny red mark”. The third incident was also said to have occurred in the lounge. Britney reported that the father had picked her up by her hair and thrown her into the black bookshelf. She said she had hit her mouth on the bookshelf which hurt. Britney said she was in Year 1 at the time.
80Michelle told the officers that when she was 5 and living in D town, she was being looked after by the father while the mother was at work. She said the father was asleep on the couch when Evelyn bit him on the toe. The father thought it was Michelle who had bitten him, so he hit her on the arm, causing a red mark which turned purple. Michelle also described having seen the father pull Britney’s ear lobes, causing bleeding. This was said to have occurred because Britney had been “nasty” to Evelyn. Michelle said that the father had hit all of the children (except Evelyn) but was unable to particularise any other incidents.
81Evelyn was only 3 at the time she was “interviewed” on 23 August 2012. She was recorded as having been mostly “non-verbal”. She was observed to have a bruise and scratch on her forehead. When asked how she got it, she said she “banged her head on the bed” and she said that “Dad” and Michelle had been there when this happened. This clearly could not have been correct if she was referring to the father and the marks were of recent origin, since Evelyn had not been in her father’s company since May 2012.
82Michael made “several disclosures of physical abuse, including being hit with a cricket bat, broom, rake, rocks and the [father’s] hands”. Michael also “disclosed that he had been locked out of the house for days at a time”. The document indicated that two of Michael’s disclosures were particularised, but the portion of the ChildFIRST form where these could have been recorded was blank. The form went on to record that it had not been possible to particularise all of the incidents, and that a second interview was arranged.
83The DCP officer assigned to the family, Samantha Beattie, was asked if she had discussed the missing particulars with anyone involved in the investigation. She said she did have a discussion with the investigators and she mentioned being told of an incident in which the father was said to have opened a door with such force that Michael and Michelle, who were sitting behind the door, had their heads forced backwards, making a hole in the wall, exposing pipes. The father was then said to have kicked Michael in the side of the face and Michelle in her stomach, and both were sent to bed without dinner. When asked for her assessment of this claim, Ms Beattie said that “it occurred for [Michael] – he believes this occurred...” She went on to say that she did not believe the children had been “coached”. The father denied that the wall was damaged in the way described. He said that there was a hole, but it happened when Michael kicked the wall, and he (the father) had to fix it.
84On the day after the ChildFIRST interviews, the mother contacted an advocate associated with the investigation to advise that Bridget now wanted to talk to the investigators. An interview was arranged for 27 August 2012. On that day, when asked by the investigators why she thought she was coming in, Bridget said it was “because of a family problem in court”. The document went on to record that “[Bridget] said that her Mum told her to give a statement and [Bridget] said she didn’t know what the statement was about”.
85The record of the interview continued:
[Bridget] said that that [[Evelyn]] has hurt herself by accident a few times by tripping over. [Bridget] did not disclose her father hitting her with an implement and would not particularise any other incidents. [Bridget] stated she misses her father and would like to see him but court won’t allow it. [Bridget] said she didn’t have many people she could talk to about her feelings and she wanted to see a counsellor.
86Michael also came back for his second interview on 27 August 2012. The record said that Michael “disclosed on-going assault by the [father] including being hit with a cricket bat, sticks and belt, being knocked out and also being hit with the 4WD”. Ms Beattie, explained in her evidence that her enquiries indicated that the latter incident happened when Michael was accidentally run into when his father was using a vehicle to remove a tree stump.
87The document recording this second interview went on to note that Michael had “difficulty particularising incidents”, but it was surmised “this may be due to the disclosure of on-going physical abuse by the [father]”. Accordingly a third interview was needed with Michael “as a witness to offences against his sisters”.
88After the 27 August 2012 interviews, the mother contacted DCP and said Bridget wanted to see the investigators again, and that she had not wanted to say more previously because she felt uncomfortable with a male interviewer in the room. Ms Beattie gave evidence that the female investigator present at the earlier interview did not feel this was the case, but Ms Beattie said her own dealings with Bridget had led her to conclude that Bridget often changes her mind, so she was not surprised about the discrepancy in information.
89Bridget came back for the further interview on 11 September 2012. She initially stated that she did not know why she had come in for the interview. She said that the mother had told her to talk about a “family problem”, but when asked if she wanted to talk about it, she replied “kind of, not really”. Bridget and the mother were then told that Bridget should only return for a further interview if this was something she wanted to do.
Further disclosures made to DCP officer
90On 9 October 2012, the mother and the three eldest children attended at the DCP office to drop off and collect some documents. Ms Beattie recorded after the meeting that Britney and Michael appeared to be quite extroverted, happy children who enjoyed the company of their mother and their siblings, and had a well developed sense of humour. However, Bridget was described as being “very subdued and seemed to observe the banter and conversation rather than participate in it”.
91Ms Beattie recorded that Bridget said she was “looking forward to going to [her] new school although [she] would prefer just to go back to [the] NSW school”. She also noted that Michael “spoke of wanting to return to NSW as he felt it was better and that they were happier there.” Ms Beattie said “[Bridget] and [Britney] both agreed with this statement and Michelle stated that she wasn’t scared when they were in NSW”.
92Ms Beattie walked the family to their car when they were leaving, at which point Michael said to Ms Beattie that he “wanted to go back to NSW as he wasn’t scared there”. Ms Beattie asked Michael what he was scared of and he replied, “I don’t get the shit beaten out of me there”. Ms Beattie asked “who by?”, to which Michael responded “my Dad”.
93On 23 January 2013, the mother and the three eldest children again came to the DCP office to visit Ms Beattie. By this time, the children had been on four supervised visits with their father. Bridget said she wanted to speak with Ms Beattie about not wanting to go on the next visit, but then became “quite shy and reserved and did not want to enter into conversation”. When given the opportunity to write down her reasons, Bridget wrote “my reason is that I don’t want to go back because the house [the supervision centre] its weird in a way and I don’t think its fair because we don’t get to spend enough time with Dad and I don’t like the house”. Michael and Britney also talked about the supervised visits and were recorded as saying that the “venue was creepy and that the workers were not friendly and the other families stared at them”. Michael also said that he had asked his father for the car back but he had refused and said that the mother needed to sign forms so that he could get rid of it. Michael also said that he wanted his dog, but his father had said “no”. Michael and Bridget told Ms Beattie that the worker at the supervision centre “does not hear the conversations as she tells their mother different things”. The children did, however, express excitement about their paternal grandmother being at the centre for the visit the following day.
94Bridget told Ms Beattie that she wanted to be able to play with her iPod during the supervised visits, but was not allowed to. When Ms Beattie asked why she would play with her iPod when she was visiting her father, she responded, “it is boring, he has nothing to say to me so I want to play games”. Ms Beattie’s note of the interview said, “discuss[ed] with [Bridget] possible interacting with her father, she stated it doesn’t happen”.
95Bridget also told Ms Beattie that the visits with her father were only eight hours a month and she wanted more; but when asked whether she would like this, Bridget was recorded as having “shrugged her shoulders and stated its boring and I don’t want to go or see him anyway” – but she would go on the visit the next day because her grandmother was supposed to be there and the father “should bring the presents that he has been promising”.
96Ms Beattie recorded that during this meeting, on 23 January 2013, “[Michael] would try to express other concerns and Bridget would tell him not to say that. Often giving him funny looks and shaking her head”. Ms Beattie recorded that the mother then told Bridget that it was OK for Michael to have his own opinions, and she asked Michael if he wanted to talk to Ms Beattie by himself, which he agreed to do.
97When Ms Beattie was alone with Michael, she asked him what he had meant by what he had said earlier. He replied that his father was “acting weird and very different” and was “not the same Dad”. (The mother also gave evidence that Michael l had told her that her father was now acting “creepy” – and that he “smiles a lot and talks different”). When Ms Beattie asked Michael what his father was like before, Michael replied:
Drunk, smoked, was always drinking, he smoked with his window half down but his all the way up, he stated that he would sit on the lounge in the lounge room and order them around especially to clean up and he would rarely help. He would talk a lot to [Michael] but not to the others in conversation. [Michael] stated that they knew when to be careful around him when he was angry or happy.
98When Ms Beattie asked Michael if he had a “magic wand and could make the [visits] better what would it look like”, Michael replied, “in a different place like a park with real police watching over us as the special workers who are walking around keeping an eye on us”. When Michael was leaving the interview, he thanked Ms Beattie and said that he felt better now that he had talked to someone “and made him feel safe”.
99Ms Beattie also recorded that during this interview, Michael and Bridget told her they had seen a white Prado around their house “multiple times” and that they believed their father was in the vehicle. Ms Beattie noted that “the house address was disclosed in the previous visit and this has been since then”.
The children’s disclosures to the Single Expert
100The children saw Mr Simon Burke, the Single Expert, on 19 February 2013. It should be recorded that Mr Burke took on the case on short notice and had a very limited time frame to provide his report into what is a somewhat complex matter.
101The Single Expert concluded that Bridget “minimised” her father’s behaviour during his interview with her. However, after originally saying she could not recall being hit by her father, Bridget then acknowledged he had hit her once or twice. Bridget said it was Michael who got smacked the most, but that it was “not hard”. Bridget acknowledged, in response to a suggestion to this effect from the Single Expert, that she was concerned that anything she said about her father might get him in trouble or result in her spending less time with him.
102When the Single Expert asked Michael why his parents were not living together any more, he said it was because “dad used to hurt us a lot and he used to bash us”. Michael also described his father screaming in the children’s faces. He reported feeling scared of his father when he screamed at him and said he was sometimes worried for his mother as well. He said he had seen his father hitting his mother “a lot of times”. When he was asked by the Single Expert to quantify this, he said “three or four times”.
321My impression overall, however, was that the mother’s testimony was fairly reliable. I noted in particular her willingness to make concessions that she would have understood were not helpful to her case. For example she did not seek to downplay the extent to which the children have settled back into their life in Western Australia after being forced to return here (see paragraph 66 of her trial affidavit).
Orders
322I have delayed the children’s departure for New South Wales until the end of the school year for all of the reasons given by the mother (see paragraph 124 of these reasons).
323I have not made orders for the children to attend programs or counselling as suggested by the Independent Children’s Lawyer as the mother has shown a capacity to arrange appropriate treatment and counselling for the children in the past and can be relied upon to follow recommendations made by DCP and others in the future.
324I have required the father to meet the costs of travel for the visits because the mother has no capacity to cover the expense, whereas the father is in employment and is likely to receive assistance from his mother to facilitate the visits. The question of possible contribution by the mother to the costs of travel can be revisited when the parties are resolving what is to become of their equity in the home.
325I have deliberately not made orders for telephone contact between the father and the children while the children remain in Western Australia as the father will be seeing the children very regularly. The telephone (or other electronic forms of communication) will commence after the children relocate. For this purpose I would expect both parents to make all the necessary arrangements, including ensuring the children have access to a computer or phone with Skype or a similar program at least once a week.
326I have not made orders for Michael or the other children to spend time with William if the father cannot spend time with them during any of the school holidays. I expect the mother to make at least Michael available to William for at least a week during such school holidays if he is willing to have the children with him.
327I have made provision for the parties to seek an updated report from the Single Expert, but it would only be the Independent Children’s Lawyer who would be at liberty to seek a report for the children to be interviewed again earlier than the conclusion of the first term holidays next year. I would not want it to be thought that the Court would change its mind about the children returning to New South Wales on the basis of anything the children might say to the Single Expert prior to their departure.
328The orders made on 15 March 2013 are very important and will therefore remain in full force and effect.
329Otherwise, the orders below are those I consider most likely to promote the children’s best interests.
1.The mother, MS FORBES, shall have sole parental responsibility for the children BRIDGET HEADEN born in 2001, MICHAEL HEADEN born in 2002, BRITNEY HEADEN born in 2004, MICHELLE HEADEN born in 2006 and EVELYN HEADEN born in 2009
2.The children shall live with the mother.
3.The mother be permitted to relocate the children to N town, in the State of New South Wales, provided that such relocation shall not occur prior to the conclusion of the school year in 2013 (namely 19 December 2013).
4.The mother shall give the father one month’s written notice of the date on which she proposes to relocate.
5.Pending their relocation, the children shall spend time with the father, MR HEADEN, as follows:
(a)From the date of these orders until and including Saturday 6 July 2013 from 10.00am to 4.00pm each Saturday (or at such other similar times as may suit Relationships Australia’s Contact Service);
(b)From and including Saturday 13 July 2013 until and including Sunday 6 October 2013 from 10.00am on Saturday until 4.00pm on Sunday (or at such other similar times as may suit Relationships Australia’s Contact Service);
(c)From and including Friday 11 October 2013 until the children relocate to New South Wales, on two out of three weekends, from 4.30pm on Friday until 4.30pm on Sunday (or at such other similar times as may suit Relationships Australia’s Contact Service);
(d)From and including Friday 11 October 2013 until the children relocate to New South Wales, and provided Relationships Australia can accommodate the handover, for up to three (3) hours after school on one day in the week in which the father does not have weekend time with the children pursuant to paragraph 5(c) of these orders; and
(e)For such additional times, if any, as the mother and father may agree would be in the best interests of the children.
6.The time the father spends with the children pursuant to paragraph 5 of these orders shall continue during the end of term school holiday periods in 2013.
7.If the mother remains in Western Australia during some or all the summer school holidays in 2013/14, the children shall spend time with each parent on a week-about basis until the mother relocates, with the children to spend Christmas Day and Boxing Day with the mother.
8.If the mother relocates to New South Wales earlier than 31 December 2013, the father shall spend time with the children in New South Wales for up to two periods of one week in January 2014 at a time to be nominated by the husband in writing not later than one (1) month prior to the commencement of the holidays.
9.If the father elects to relocate to New South Wales, the father be at liberty to apply for orders defining the time he may spend with the children in New South Wales, to include at least each alternate weekend and one half of school holidays.
10.If the father elects not to relocate to New South Wales, he shall spend time with the children (anywhere in Australia) as follows from the date of the children’s relocation:
(a)For two of the three end of term school holidays each year, provided that the father shall advise the mother at the commencement of each school year of the holidays he proposes to have with the children that year;
(b)For one half of the 2014/2015 summer school holidays, to include (if the father chooses) Christmas Day and Boxing Day;
(c)During the 2015/2016 summer school holidays and each alternate year thereafter, from 12 noon on 26 December for the remainder of the school holidays; and
(d)During the 2016/2017 summer school holidays and each alternate year thereafter, for the whole of the holidays, including Christmas Day and Boxing Day.
11.After the children’s relocation to New South Wales, the father be at liberty to visit and spend time with them (to include at least from after school Friday until Sunday at 6.00pm), provided that he has given the mother at least one (1) month’s written notice. Such visits shall not occur during the one holiday in each year that the children will spend with the mother, unless the mother consents.
12.For all of the school holiday periods above, the father shall:
(a)Inform the mother in writing of all proposed travel details at least one month before the holidays commence;
(b)Inform the mother in writing where the children will be staying and a telephone number on which they can be contacted at least one week before the holidays commence; and
(c)Ensure the children are returned to the mother no later than 48 hours prior to the commencement of the next school term.
13.Prior to the children relocating to New South Wales, the father shall permit the mother to have telephone or other electronic contact with the children on one occasion each night the children are with the father and for this purpose he shall inform the mother in writing of the number on which the children may be contacted.
14.After the children have relocated to New South Wales, the mother shall allow the father to have telephone or other electronic contact with the children on at least three (3) occasions each week and for this purpose the mother shall inform the father in writing of the number on which the children may be contacted.
15.After the children have relocated to New South Wales, the father shall permit the mother to have telephone or other electronic communication with the children on every third day the children are spending time with the father.
16.While the mother and father are both resident in Western Australia, handovers for the purposes of these orders shall take place at the Relationships Australia Contact Service at S town. The contact service shall be at liberty to prevent the father from spending time with the children if he presents with alcohol on his breath or appears under the influence of alcohol or drugs.
17.After the relocation of the children to New South Wales, handovers for the purposes of these orders shall, if practicable, be conducted with the assistance of a recognised handover service, or if there is no service where the mother is living, handovers shall be conducted by the maternal grandmother or her husband or such other person as the mother may nominate.
18.Until further order, the father shall meet the costs of travel associated with spending time with the children, including the cost of any necessary accompanying person, provided that the mother shall ensure the children are delivered to and collected from the Sydney airport at her expense if the father so requests.
19.At the time of determination of property settlement issues between the mother and the father, the father be at liberty to apply for orders for provision to be made to meet some or all of the travel costs associated with the father spending time with the children.
20.The father is restrained and an injunction is hereby granted restraining him from allowing the children to attend at the premises occupied by his mother in D town.
21.The Independent Children’s Lawyer be at liberty, at any time, to request the relisting of the proceedings for the purpose of seeking an order for the preparation of an updated report from the single expert.
22.The mother and the father be at liberty to seek the relisting of the proceedings for the purpose of seeking an order for the preparation of an updated report from the single expert, provided that such request shall not seek that the children be interviewed prior to the conclusion of the first school holidays the children spend with the father in Western Australia.
23.The orders contained in paragraphs 1 to 11 of the Minute of Consent Orders attached to the orders made on 15 March 2013 remain in full force and effect (these orders deal, amongst other things, with the parents attending various programs and refraining from consuming alcohol and drugs 12 hours before or during any time the children are in their care, physically disciplining the children, denigrating the other parent and discussing the court proceedings with the children).
24.The proceedings otherwise be dismissed.
I certify that the preceding [329] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
0