Hiller and Young and Ors

[2020] FCWA 143

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

CITATION: HILLER and YOUNG & ORS [2020] FCWA 143

CORAM: SUTHERLAND CJ

HEARD: 20-23 JULY 2020

DELIVERED : Ex tempore

FILE NO/S: PTW 5590 of 2018

BETWEEN: MS HILLER

Applicant

AND

MR YOUNG

First Respondent

AND

MS YULE

Second Respondent

AND

MRS YOUNG

Third Respondent

Catchwords:

CHILDREN - Best interests - With whom the children live and spend time - Case turns on its own facts

Legislation:

Family Court Act 1997 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Self Represented Litigant
First Respondent	:	Self Represented Litigant
Second Respondent	:	Did not attend
Third Respondent	:	Ms McKenzie
Independent Children's Lawyer	:	Ms X

Solicitors:

Applicant	:	Self Represented Litigant
First Respondent	:	Self Represented Litigant
Second Respondent	:	Did not attend
Third Respondent	:	McKenzie & McKenzie
Independent Children's Lawyer	:	Legal Aid WA

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

Goode & Goode (2006) FLC 93-286

Re F: Litigants In Person Guidelines (2001) FLC 93-072

Yamada & Cain [2013] FamCAFC 64

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 Hiller and Young has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).

What is this case about?

1These proceedings concern the parenting arrangements for [Child A], aged six, and her young half-sister, [Child B], aged nearly three. The children are very fortunate to have a number of people who are concerned for their care, welfare and development, and who participated in the proceedings, including, the maternal grandmother, [Ms Terri Hiller]; Child A’s biological father, [Mr Glenn Young]; and Child A’s paternal grandmother, [Mrs Maureen Young]. For the sake of clarity I intend to refer to the parties by their Christian names. I mean no disrespect in doing so.

2The children’s mother, [Ms Janelle Yule], was initially also a party to the proceedings. However, on 30 June 2020, the court ordered that the trial proceed undefended as against Janelle due to her ongoing failure to participate.

3Notwithstanding that Child B is not a lineal relative of Glenn and Maureen, they have played a very significant part in the child’s life since her birth, and sought parenting orders in relation to her. Child B’s biological father has played no part in the child’s life, despite being aware of her existence, and he was unable to be located for the purposes of these proceedings.

4The children were independently represented, including at trial, by an Independent Children’s Lawyer ("ICL").

5The proceedings have been complicated by a number of factors, including firstly Janelle’s history of substance abuse, violence and mental health issues; and secondly, the ongoing conflict between the maternal and paternal families.

What issues were agreed and what issues remained in dispute?

6By the end of the trial Terri, Glenn, Maureen and the ICL were able to reach substantial agreement in relation to parenting issues, in large part adopting the terms of the ICL's Preliminary Minute of Orders Sought. This included, but was not limited to, the arrangements for Terri and Glenn to spend time with the children during the school holidays and on special occasion days; the children’s telephone communications; for Janelle to spend time with the children, supervised by Terri; and for Terri and Glenn to attend non‑reportable family therapy with the goal of improving their relationship for the benefit of the children.

7However, the parties were unable to reach agreement in relation to the following matters:

a)Parental responsibility. Terri sought an order that she and Glenn have equal-shared parental responsibility for the children. On the other hand, the remaining parties sought that Glenn have sole parental responsibility for the children.

b)Child A’s live-with arrangements. Terri sought an order that Child A live with her for three days a week and the remainder of the time with Glenn. On the other hand, the remaining parties all sought that Child A live with Glenn and spend time with Terri each alternate weekend.

c)Child B’s live-with arrangements. Terri sought an order that Child B live with her for four days a week and the remainder of the time with Glenn. On the other hand, the remaining parties all sought that Child B live with Glenn and spend time with Terri each alternate weekend.

d)Finally, the children’s passports. Terri sought an order that Glenn only be able to obtain passports for the children with the prior consent of Janelle. On the other hand, the remaining parties all sought an order that Glenn be able to obtain passports without Janelle’s consent.

8As will become evident from these Reasons, I am satisfied that final orders should be made largely in the terms of the orders sought by the ICL, Glenn and Maureen.

How did the trial proceed?

9Terri and Glenn were represented by solicitors at the commencement of the proceedings, but for the most part have been self-represented, including at the trial. On the other hand, Maureen was represented by solicitors throughout the proceedings, including at the trial.

10As is usual in trials involving a self-represented litigant, I provided specific procedural information to Terri and Glenn in accordance with the guidelines set out by the Full Court in Re F: Litigants In Person Guidelines (2001) FLC 93-072, including in relation to the purpose of cross-examination and the consequences of not cross‑examining on major issues that were in dispute. Further, at the commencement of the trial I specifically identified for them the various factors listed in s 66C of the Family Court Act 1997 (WA) so as to focus their attention on what they needed to address. I also provided Terri, Glenn and Maureen with the opportunity to indicate whether they agreed with, or disputed, each of the propositions advanced by the ICL in respect of the s 66C factors as set out in her Papers for the Judge. To their credit, they also agreed a significant number of the ICL’s propositions, further limiting the issues in dispute between them at trial.

11Terri and Maureen relied upon their trial affidavits, and in the case of Maureen, her updating trial affidavit. Glenn relied upon his trial affidavit, together with the affidavits of his partner, [Ms Granger], and his father and Maureen’s husband, [Mr Young Snr]. The ICL relied upon the report of the single expert, [Dr Z].

12Specific procedural orders were made prior to the trial in relation to how the matter would be managed during the trial. At the commencement of the trial the parties also agreed the order of cross‑examination for each witness as follows: the ICL followed by Maureen’s counsel, followed by the father, and then followed by Terri. Glenn chose not to cross-examine any witness. This was unsurprising, given the thorough nature of the ICL’s and Maureen’s counsel’s cross-examination, and the fact that Glenn’s and Maureen’s cases were very closely aligned.

13Pursuant to procedural orders referred to above, the ICL opened her case first, and then Dr Z was called to give his evidence. I gave all of the parties, including the ICL, leave to cross-examine Dr Z. At the conclusion of the ICL’s case the trial was adjourned briefly so that the parties could confer. The parties were unable to reach any agreement at that point, and the trial accordingly continued.

What credibility findings were made in relation to the witnesses?

14Firstly, the expert, Dr Z, is a clinical and forensic psychologist. He published his report in March 2020. In short, he recommended that both Child A and Child B should live with Glenn and spend time with Terri, including each alternate weekend during the school terms, and for half of each school holiday period. Dr Z was cross‑examined by the ICL and Maureen’s counsel. Although Terri initially indicated that she did not wish to cross‑examine the expert, she eventually did so very briefly and only in relation to issues concerning [Child C], who is another child of Janelle who is not the subject of these proceedings. I consider that Dr Z was professional, helpful and largely unchallenged in giving his evidence, and I have no hesitation in accepting his evidence as contained in his report, together with his further oral evidence at trial, including that:

a)The children have close relationships with all their major caregivers, including Terri, Glenn, Ms Granger and Maureen, and there was no noticeable difference in the quality of the children’s attachments to each of them.

b)Terri, on the one hand, and the paternal family on the other hand, were embroiled in conflict, and Child A and Child B had become entangled in the dispute. In particular Child A was aware of the conflict between the two families and at times it had adversely impacted on her emotional and psychological well-being.

c)The two children should live together on a full-time basis to protect and cement their long-term sibling relationship. If separate live-with arrangements were made for the children then not only would it potentially weaken their sibling bond, but the arrangement was highly likely to perpetuate the ongoing feud between the two families.

d)Terri and the paternal family had significantly different parenting styles. An arrangement where the children lived for the majority of the time with one side was likely to reduce any harmful impacts on the children, particularly given their young ages and stages of development.

e)Both Terri and Glenn have the capacity to adequately meet the children’s needs. However, overall, the father – supported by the paternal family – had a stronger capacity than did Terri to provide for the children’s psychological and emotional needs, including promoting the other family to the children.

15The father, Glenn, was cross-examined by the ICL, Maureen’s counsel and Terri. In his report, Dr Z described Glenn as “an affable, uncomplicated, and easy-going man.” This accorded entirely with my observations of Glenn. It was obvious that Glenn loves Child A and Child B very dearly, and is strongly motivated to put in place parenting arrangements in the children’s best interests. Glenn impressed me as being open, frank, candid and honest during his cross‑examination. I was satisfied that in his affidavit evidence, Glenn exaggerated his concerns and his complaints about Terri’s care of the children. However, I am also satisfied that in his oral evidence, Glenn readily made concessions against his interests, including acknowledging that Terri is a good grandmother to the two children, and that the children really look forward to spending time with her.

16The father’s partner, Ms Granger, was cross-examined by the ICL and Terri. Ms Granger impressed me as being a quiet, patient and kindly young woman. I am satisfied that she was reasonably very concerned for her safety after receiving threats from Janelle, and at times she has also been somewhat intimidated by Terri’s aggressive nature towards her and other members of the paternal family. I considered that Ms Granger was open, candid and truthful in giving her evidence.

17The paternal grandfather, Mr Young Snr, was only briefly cross‑examined by Terri, and only about one aspect of his affidavit. From the very short time I had to observe Mr Young Snr, he appeared to be thoughtful and helpful in his responses. He was not successfully challenged about his evidence and accordingly I accept his evidence.

18I consider it appropriate that I deal with the two grandmothers together. Terri was extensively cross-examined by the ICL and Maureen’s counsel. In turn, Maureen was cross-examined by the ICL and Terri. They may be surprised to learn that I consider that the two grandmothers had much in common. Both are proud women who have very forceful personalities. Both were strongly loyal to their respective families. Both love their two granddaughters very much, and it was obvious that both were strongly motivated to protect the children and to ensure that the children not only continue to enjoy a meaningful relationship with each of them, but also with their respective families.

19Terri has experienced many challenges in her life, including financial issues, health issues, and very significant issues with some of her adult children. At times Terri has been aggressive in her exchanges, not only with the paternal family but also with some of her own children. I have no doubt that at times the paternal family, in particular Ms Granger, find Terri’s behaviour quite challenging and intimidating.

20Maureen impressed as being very proud of her family, and of their financial achievements since migrating to Australia. Unfortunately it became patently obvious during Terri’s cross-examination of Maureen that the two grandmothers disliked each other intensely, and that Maureen, under a thin veneer of civility, has mastered the art of winding Terri up, including by being condescending and disrespectful to her. I have no doubt that Terri finds Maureen’s behaviour towards her intimidating, controlling and domineering. In this regard I concur with Dr Z’s comments that Terri felt intimidated by Maureen’s relative affluence and sense of superiority over her.

21In her closing submissions Terri showed considerable insight into her role in the ongoing conflict between the two families. On the other hand, Maureen seemed to demonstrate little insight into her role in perpetuating the ongoing conflict. This lack of insight does Maureen little credit.

22I consider that both Terri and Maureen were somewhat unimpressive witnesses. Terri was a very poor historian, and often could not remember various significant events, including sometimes very recent events. As a result her evidence was sometimes confused, contradictory and difficult to follow. Very occasionally I formed the impression that Terri claimed to have a poor memory as a way of avoiding answering some questions. Her evidence in relation to her text messages to Maureen about the “extravaganza” function at Child A’s school in February 2020 was an example of this.

23I am also satisfied that some of Terri’s evidence in her Case Information Affidavit, including about the living arrangements for the children in the lead-up to her commencing proceedings in July 2018, was not accurate.

24I consider that Maureen was unhelpful and self-serving in her responses during cross-examination. I was also satisfied that she was not always prepared to be full and frank in her responses; her evidence in relation to the incident outside the [supermarket] being an example of this.

25I am satisfied that both grandmothers were so wrapped up in their feud that they were simply not able to give their evidence in a balanced way. In particular, I am satisfied that Maureen continually exaggerated her complaints and concerns about Terri, whilst at the same time, minimising her own poor decisions and actions. Her actions in insisting that Terri sign the statement about the payment of Child A’s school costs, and in insisting that she and the other paternal family members were going to attend Child A’s “extravaganza” night in February 2020, are examples of this. Terri was suspicious of, and quick to blame, the paternal family for perceived wrongs and slights against her. On the other hand, Terri regularly minimised or ignored Janelle’s violent, maladaptive and harmful behaviours, and the risk that she posed to the children. However, to her great credit, Terri was able to make a number of significant and appropriate concessions against her interests, such as conceding that the paternal family would do a good job in raising the children; conceding that the children should not be brought into contact with her son [Mr A]; apologising to the paternal family a number of times during her evidence, including the failing to send them a copy of Child A’s merit award, and acknowledging her role in the ongoing conflict.

[Who are] the key adults in the children’s lives?

26Terri was born in 1964, and at the time of the trial was nearly 56 years old. She currently works part-time as [an office administrator], and is otherwise dependent on Centrelink benefits. She lives in [Regional Town A] with her [adult] daughter [Ms B]. Aside from Ms B and Janelle, Terri has five other surviving adult children, including:

a)Mr A, who is aged approximately 37. During his teenage years, Mr A and Terri had a tumultuous relationship, including Terri being forced to obtain the assistance of the police to remove him from her home, and at different times obtaining violence restraining orders to protect herself from him. Over time Mr A has engaged in significant criminal activities. His History for Court Record reveals that between 1997 and 2018 he had approximately 200 convictions, including for drug‑related offences, weapons offences, aggravated burglary, burglary, stealing, threats to kill, criminal damage by fire, breach of VRO, and multiple driving offences. Terri and Mr A were estranged for many years and only got back into contact with each other in 2018 when Mr A was released from prison and stayed with Terri for a short time at her home. Terri acknowledged that she knew little about Mr A’s criminal record when he stayed with her, and she further conceded that the children should not be brought into contact with him.

b)[Mr C], [who is] aged approximately 27. Mr C lives in [City A] and has been unable to work after suffering severe injuries in a motor vehicle accident.

c)[Ms D], [who is] aged approximately 21. Ms D also lives in City A and has recently separated from her boyfriend as a result of family violence.

d)[Ms E], whose age was not clear on the evidence, who lives in [City B] with her partner. Ms E and her partner have a history of substance abuse issues. Her children are all currently in foster care.

e)[Ms F], whose age was also not clear on the evidence, who is married with one child, lives in the eastern states, and works as the boss of [a manufacturer]. Terri speaks regularly with Ms F and her grandchild through video calls.

27Mr Young Snr was born in 1967, and is currently 52 years old. He is married to Maureen, who was born in 1968, and is currently also 52 years old. Glenn was born in 1993 and is now 27 years old. He is their only child. The family were originally from [Country A] and migrated to Australia in 2006. Since moving to Australia the family has resided in Regional Town A. Mr Young Snr and Glenn both work in the [construction industry], Mr Young Snr as [a surveyor], and Glenn as [a labourer]. Maureen is employed as [an account manager]. Ms Granger was born in 1998 and she is currently 22 years old. She has work qualifications and previous work experience [as a caring professional]. She and Glenn commenced a relationship in mid‑2018 and they started living together in late 2018. Ms Granger does not currently work, so that she can be available to assist Glenn in the care of the children, especially whilst he is working remotely on site, which can take him away from Regional Town A for up to two weeks at a time.

28Janelle was born in 1995 and she is now 24 years old. Aside from Child A and Child B, Janelle also has a third child, Child C, who was born in [mid-2019]. Janelle has a long history of illicit drug use, particularly methylamphetamines, alcohol abuse, violent antisocial behaviour, and mental health issues. Janelle has criminal convictions for assaulting Glenn and criminal damage to his property resulting from an incident that took place [in mid-2018]. The evidence revealed that at the time of Child C’s birth, Janelle told her treating medical providers that she had used meth on a very regular basis during her pregnancy, including on the day before she went into labour. Since Child C’s birth, Janelle has been hospitalised for episodes of deliberate self-harm, usually when she was intoxicated. There was little evidence before the court as to Janelle’s and Child C’s current circumstances, save that Terri believed that they were living in Regional Town B and that Janelle was not doing very well.

29Janelle and Terri have had a tumultuous on again, off again, relationship since Janelle was a teenager. Janelle has lived with Terri at different times, including at times during and after her relationship with Glenn, and more recently during her pregnancy with Child C, and for approximately six months after his birth. Terri conceded that she was aware that Janelle was using illicit drugs during her pregnancy, but did not seek outside help for Janelle – for example by contacting the Department for Communities – or medical services for assistance. Terri accompanied Janelle to the hospital when she gave birth to Child C, and assisted Janelle to deal with the hospital’s and the Department’s concerns about Janelle’s ability to properly care for the baby. This included Terri and Janelle entering into a safety plan with the Department that Janelle and Child C would live with Terri, and that she would care for Child C in the event that Janelle recommenced abusing substances. Terri conceded that she did not inform the Department when she required Janelle and Child C to move out of her home in early 2020, notwithstanding that she was aware that Janelle was continuing to abuse alcohol.

What are the significant background facts in this case?

30Glenn and Janelle met in Regional Town A in 2011, and formed a relationship shortly afterwards. At the time Glenn was approximately 18 and Janelle was approximately 16. Child A was born in [late-2013] and Child B was born in [mid-2017]. At the time of Child B’s birth, Glenn and the paternal family believed that he was the child’s biological father. Glenn was only told some time after [the] final separation that he was not the biological father, which was later confirmed by parentage testing. Glenn and Janelle ended their relationship on a final basis in or about March 2018.

31The evidence about Glenn’s and Janelle’s living arrangements during their relationship was confused and contradictory. Suffice it to say, I am satisfied that at various times Glenn and Janelle (and the children when they were born) lived in Maureen’s home, in Terri’s home, and in their own rental accommodation. Glenn was employed on a full-time basis and financially provided for the family. They were substantially assisted in the care of the children by both the paternal and the maternal families.

32Glenn and Janelle had a toxic relationship marred by frequent arguments, Janelle’s ongoing substance abuse, and episodes of Janelle being physically violent towards Glenn and destroying his property. I accept Glenn’s evidence that the children were sometimes exposed to the arguments between him and Janelle.

33Several months after Child A’s birth, Janelle and Glenn separated. Janelle and Child A moved back into Terri’s home for some time before Janelle then moved with Child A to her new boyfriend’s home. In or about June 2015, Maureen removed Child A from Janelle’s care, after finding Janelle under the influence of substances, and Child A being neglected in her care. I am satisfied that Maureen acted protectively in so doing. After this time, the two grandmothers effectively shared the care of Child A. Glenn and Janelle reconciled for a short period in 2016, and then again in 2017, a few months prior to Child B’s birth. After Child B’s birth, the two grandmothers continued to effectively share the care of Child A and provided substantial support and assistance in the care of Child B.

34[In] March 2018, Glenn and Janelle separated on a final basis, after Janelle physically assaulted Glenn, damaged the rental property they were living in, and destroyed various contents. After their final separation Janelle moved with the two children back into Terri’s home. After an initial hiccup, the two children recommenced spending significant periods of time in the care of the paternal family, as well as in the care of the maternal family.

35In early June 2018, Terri left Regional Town A, leaving the two children in the care of Janelle, and went to stay with her son in City A for an indefinite period. I am not satisfied that Terri then had any intention of returning to Regional Town A. On 24 June 2018, Maureen refused to return the two [children] to Janelle’s care, as Janelle was heavily intoxicated and aggressive towards her. Again, I am satisfied that Maureen acted appropriately and protectively of the children in so doing. Glenn attended at Terri’s home to speak to Janelle about the children and was again physically assaulted by Janelle. Janelle also extensively damaged Glenn’s motor vehicle, as I understand it, with a sledgehammer. Janelle was subsequently arrested by the police, charged and convicted of common assault in circumstances of aggravation and criminal damage / destruction of property.

36Terri travelled back to Regional Town A for two or three days immediately after this incident. I accept her evidence that she contacted Maureen to try and arrange to see the children, but that face‑to‑face contact was not facilitated. Maureen did, however, facilitate Terri speaking with the children via telephone.

37Terri then returned to Perth, and on 17 July 2018, she filed a Form 1 Application including seeking a recovery order for the delivery up of the two children into her care. At the first return date on 31 July 2018, the court made interim orders for the children to live with Terri and Maureen on a week-about basis, for Janelle to spend time with the children supervised by Terri, and for Glenn to spend time with the children as agreed between himself and his mother. Procedural orders were also made, including for the appointment of the ICL and for Janelle and Glenn to undergo random drug urinalysis testing.

38I observe at this point that in relation to drug testing, Janelle largely – if not completely – failed to comply with the orders for random drug testing. On the other hand, Glenn largely complied with the orders for drug testing, and his test results were clear. In addition, I am satisfied that as part of his employment [Glenn] is breathalysed on a daily basis [and] is subject to random drug tests by his employer. There was no evidence to suggest that Glenn has ever failed such tests.

39Maureen filed her responding court documents in August 2018, followed by Glenn in October 2018. Terri, Janelle, Glenn, Maureen and the ICL, attended a Case Assessment Conference in October 2018. All bar Janelle were represented by solicitors at this conference. In her report, the Family Consultant opined that there appeared to be no child protection concerns in relation to either grandparents’ care of the children, but rather a vast difference between their parenting styles and values in relation to raising children. The clash in values and styles had resulted in the matter coming to court, and a rift developing between the maternal and the paternal families. Now having had the opportunity to see the parties, and to hear their evidence at trial, I agree with the Family Consultant’s views in this regard.

40The Family Consultant recommended that both parties work towards a more respectful and amicable approach. To that end she recommended that the two grandmothers attend at Centrecare for family counselling in relation to the shared care of the children, and to develop better methods of communication and shared parenting styles in order to assist the children to develop in a healthy, loving environment. Unfortunately for the children, the paternal and the maternal families chose not to follow the recommendation of the Family Consultant.

41At the next court hearing on 20 November 2018, orders were made to progress the matter to trial, including listing a Readiness Hearing in February 2019. However, at the Readiness Hearing the parties agreed to vacate the trial and instead attend dispute resolution with Legal Aid.

42On 18 March 2019, the court then made consent orders for Child A to live with Terri and Glenn on a week-about basis, and for Child B to live with Terri and spend time with Glenn each alternate week from 3:00pm, Wednesday, until 3:00pm the following Monday. Orders were also made for Janelle to spend supervised time with the children, and for Maureen to spend time with the children as agreed with Glenn. Those are effectively the arrangements which have continued to the present day.

43The parties were eventually unable to resolve parenting issues on a final basis. At the further hearing on 18 July 2019, the court made further orders to progress the matter to trial. Relations between Terri and the paternal family continued to significantly deteriorate. By the time of the trial, Ms Granger appeared to be the only effective conduit for direct communications between Terri and the paternal family. Direct communications between Terri on the one hand, and Glenn and Maureen on the other hand, are effectively non-existent.

44Dr Z published his report in March 2020. He also recommended that the two families should participate in family-based counselling. At the time of the trial the two families had still not commenced such counselling, albeit all parties indicated at the start of the trial that they would consent to orders for counselling to take place.

What is the applicable law?

45These proceedings are determined under Part 5 of the Act. In reaching my decision I will be guided by the objects of that Part, and the principles underlining those objects. Section 66 sets out the objects and the principles underlying them. The Full Court in Goode & Goode (2006) FLC 93-286 made clear that when a parenting order is sought, whether it be final or interim, the starting point is the application of a presumption that it is in the best interests of the child that the child’s parents have equal shared parental responsibility, subject to the qualifications set out in the relevant section.

46In this case all the parties agreed that an order that the respective parents of the children have equal shared parental responsibility for them was not appropriate and was not in the children’s best interests. Accordingly, in determining the outcome of parenting matters, I must – pursuant to s 66A of the Act – consider the best interests of the children as the paramount consideration.

47In determining what is in a child’s best interests, I must consider the matters set out in s 66C of the Act. In closing, the ICL referred me to the Full Court’s decision in Yamada & Cain [2013] FamCAFC 64 as authority for the proposition that the broad inquiry as to best interests contemplated by s 60CC of the Family Law Act [1975 (Cth)], being the equivalent provision in that Act to s 66C of the Family Court Act [1997 (WA)], recognises that it is not parenthood which is crucial to best interests of the child, but parenting, and the quality of that parenting and the circumstances in which it is given or offered by those who contend for the parenting orders. As will become apparent, I am satisfied in this case that it matters little that Child B is not the biological child of Glenn, particularly in circumstances where he has assumed the role of father figure in her life and treats her as his own.

48I now turn to a consideration of the relevant factors as required by the legislation. Where I do not refer to a factor it is because I consider it is not relevant in this case.

What are the relevant primary considerations?

49The first that I consider is the benefit to the child of having a meaningful relationship with both of the child’s parents. This consideration requires me to make findings specifically in relation to the children’s parents. I will deal with the benefit to the children of having meaningful relationships with the other significant persons in their lives later in these reasons.

50The parties agreed, and I am satisfied, that: Firstly, Child A has a positive relationship with her father, Glenn, and there is a real benefit to the child in having and maintaining a meaningful relationship with him. Secondly, Child B’s biological father has had no involvement with Child B at all since her birth, and to date has shown no interest in seeking a relationship with her. In such circumstances I am satisfied that there is no present utility in attempting to formulate orders to facilitate Child B having a meaningful relationship with her biological father.

51Terri’s evidence was that Janelle is currently not doing well, and accordingly has only limited time with the two children. Terri also suggested that Janelle had lost interest in the children after the paternal family removed them from her care. Notwithstanding this, and subject to the children not being exposed to harm whilst in the presence of their mother, I am satisfied that there is a real benefit to the children in having and maintaining a meaningful relationship with Janelle.

52Turning to the second of the primary considerations, the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect, or family violence: all parties agree that Janelle’s substance abuse problems, violence issues and mental health issues, pose an ongoing risk of harm to the two children, and that she should only spend time with the children supervised by Terri.

53The parties all accepted Dr Z’s evidence, and I am satisfied that: Firstly, the children were otherwise not at risk of harm from abuse, neglect or family violence whilst in the care of Terri, Glenn or Maureen. Secondly, leaving aside Janelle, the main risk of harm to the children appeared to stem from the conflict between the maternal and paternal [families]. In particular, all the parties accepted Dr Z’s view that the children have become entangled in the dispute between the two families. They accepted that as at August 2019, Child A appeared to be showing signs of stress from her exposure to, or awareness of, the conflict between her caregivers, and that she also may currently be suffering from anxiety.

[What are] the relevant additional considerations?

54The first being any views expressed by the child on 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: Dr Z met with Child A on 12 February 2020. Child A told the expert that she would like to live with her father and Maureen for the reason that Terri sometimes calls to her and yells at her. However, given Child A’s young age and her likely stage of development, I am not satisfied that she has sufficient maturity to make a considered decision in relation to her future parenting arrangements, or that I should give any significant weight to her views in this decision. This is particularly in circumstances where Child A is aware of the conflict between the two families and has been placed in a position of having to navigate a conflict in her loyalty to her two families. All the parties agreed that Child B was too young for her views, if any, and if she could express them, to be given any consideration.

55Next, the relationship of the children with each of the children’s parents and other persons: I accept Dr Z’s evidence that the children have close relationships with all their major caregivers, including Terri, Glenn, Ms Granger and Maureen, and that there are no noticeable differences in the quality of the children’s attachments to each of those caregivers. The parties agreed, and I am satisfied, that: firstly the children have positive relationships with Glenn, Ms Granger, Terri and Maureen; secondly, to the extent that those persons are not the biological parents of the children, there is also a positive benefit to the children in having and maintaining meaningful relationships with those persons.

56I am also satisfied that the two children have close and loving relationships with each other. The parties accepted Dr Z’s evidence, as do I, and I am satisfied that it is in the children’s best interests that they live together, rather than living separately from each other.

57There was little, if any, evidence before the court as to the children’s relationships with Child C, and I am unable to make any findings in this regard. I do note, however, Dr Z’s evidence that the children would be able to form and maintain a relationship with Child C within the framework of spending time each alternate weekend with Terri, who is in the best position to promote that relationship, if it can be promoted at all, noting the current difficulties facing Janelle.

58Next I turn to the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to each child, to spend time with each child, and communicate with the child: This consideration again requires me to make findings specifically in relation to the children’s parents. However, for the sake of convenience and clarity for the parties, I will also deal at this point with the extent to which other significant persons in the children’s lives have taken, or failed to take up such opportunities. I am satisfied that Glenn has taken every opportunity to spend time with, communicate with, and participate in making decisions concerning his daughter Child A. I am not satisfied that the same can be said for Janelle in relation to both children, or for Child B’s biological father. I am satisfied that each of Glenn, in relation to Child B, and Terri and Maureen in relation to both children, have otherwise taken every opportunity to spend time with and communicate with the children. The parties agreed, and I am satisfied, that Glenn, Terri and Maureen all make decisions regarding the children’s day-to-day needs, and that the only major long-term issue that appears to have been significant to date has been in relation to the children’s health. In this regard I am satisfied that Terri on the one hand, and Glenn and Maureen on the other hand, have each separately made decisions regarding the children’s health issues. However, particularly in recent months, Terri and the paternal family have shown little, if any, ability to effectively communicate with each other about the children’s health issues, and have proved largely unable to effectively cooperate with each other regarding the children’s health issues. The failure of the parties to effectively communicate with each other about Child A’s counselling with Centrecare, and her referral to CAMHS, are prime examples of this. I also note the father’s evidence under cross‑examination that he was unaware until reading the subpoenaed material of the extent of Terri’s involvement in seeking medical attention for the children. This was in circumstances where he asserted in his trial affidavit that Terri would leave the medical care of the children to the paternal family, a position which I am satisfied was not in fact correct.

59Next, the extent to which each of the children’s parents has fulfilled, or failed to fulfil, that parent’s obligation to maintain the child: This consideration again requires me to make findings specifically in relation to the children’s parents. However, for the sake of convenience and clarity, I will also deal with this point to the extent that I can, insofar as it relates to the other persons who are significant to the children’s lives. I am satisfied that Glenn provides for Child A’s financial needs when the child is in his care. In addition, Glenn currently pays child support as assessed from time to time to Terri for Child A. There was no evidence to suggest that either Janelle or Child B’s biological father financially contribute in any way towards their children. I am also satisfied that each of Glenn in the case of Child B, and Terri in relation to both children, provide for the children’s financial needs when the children are in their respective care. I am also satisfied that from time to time the paternal family have provided some additional financial assistance for the children, including in the past occasionally purchasing baby formula, nappies and other items when requested by Terri, and/or Janelle, and by paying various school expenses.

60Next in relation to the likely effect of any changes in the children’s circumstances: Neither the orders proposed by Terri nor the other parties will result in the children being separated from their respective parents, or other significant persons, noting that Janelle currently has a very limited relationship with the children, and Child B currently has no relationship with her biological father in any event.

61Next, turning to the practical difficulty and expense of each child spending time with and communicating with their parents, and whether such difficulties and expense substantially affect the child’s rights to maintain personal relations and contact: Again this consideration requires me to findings specifically in relation to the children’s parents. However, again for the sake of convenience and clarity, I will also deal at this point with any practical difficulties and expense in relation to the children spending time with and communicating with the other significant persons in their lives. The parties agreed, and I am satisfied, that there are no practical difficulties or expense in relation to the children spending time with and communicating with their parents, again bearing in mind that Child B currently has no relationship with her biological father. The parties agree, and I am also satisfied, that there are no practical difficulties or expense in relation to the children spending time with and communicating with the other significant persons in their lives.

62Next, the capacity of each of the parents and any other persons to provide for the needs of the children, including their emotional and intellectual needs: This consideration is a very significant factor in my decision. The parties all accepted Dr Z’s evidence, as do I, and I am satisfied that Terri, Glenn and Maureen all have the capacity to provide for the needs of the children. However, I also [accept] Dr Z’s evidence that overall Glenn has a stronger capacity than does Terri to provide for the children’s psychological and emotional needs, including promoting the other family to the children, for the following reasons.

63Firstly, I am satisfied that Glenn has significant support from his parents and partner in caring for the children, and that together they form a loving and close-knit extended family unit and support base for the two children. Secondly, I am satisfied that there are aspects of Terri’s life that detrimentally impact on her capacity to adequately meet the children’s needs. In particular, Terri has a longstanding history of dysfunctional relationships with some of her children, and of periodically having to deal with significant family crises. Some of Terri’s children, including Janelle, have a history of antisocial and/or maladaptive behaviours, including criminal behaviour, violence, substance abuse and neglect of their children. In particular, Terri’s attitude to Janelle’s very significant issues was difficult to understand. Terri regularly appeared to minimise or ignore Janelle’s substance abuse issues, her violence and her mental health issues, and the risk that such behaviours pose to Child A, Child B and Child C. Terri’s approach to such matters seemed to be one of: “If I don’t see it, and it doesn’t happen in my house, then it’s not my problem.” I consider that Terri’s unwavering view that Child C was safe in Janelle’s care, even after Terri required them to leave her home in early 2020, was quite extraordinary, and quite frankly beggared belief. This was particularly in the light of the fact that Terri conceded that she was aware that Janelle was [continuing] to abuse alcohol when she required them to leave her home in early 2020, and that she was also aware of Janelle’s more recent admission to hospital for deliberate self-harm. I concur with Dr Z’s evidence, and the ICL’s submissions, that if Child A and Child B were to live primarily with Terri, then there is a risk that such dysfunctional, antisocial and maladaptive behaviours and beliefs may become normalised to the children.

64In terms of the maturity, sex, lifestyle and background of the children: the parties agreed that Child A’s emotional health and well‑being has been detrimentally impacted by the conflict between the paternal and maternal families. Child B has also suffered from some ongoing health issues, including a persistent rash and at least one episode of suffering a seizure. I am satisfied that the inability of Terri and the paternal family to effectively communicate with each other and cooperatively co-parent the children has not assisted in the management of the children’s health issues.

65Next, the attitude to the child and to the responsibilities of parenthood demonstrated by each of the parents: This consideration again requires me to make findings specifically in relation to the children’s parents. However, for the sake of convenience and clarity, I will also deal at this point with the attitude to the children and to the responsibilities of parenthood demonstrated by the other significant persons in their lives. These matters are also significant factors in my decision. The parties agreed, and I am satisfied, that Glenn loves Child A and wants what is best for her. Whilst I do not doubt that Janelle loves the two girls, it is clear that her parenting has been severely compromised by her substance abuse, violence and mental health issues. Child B’s biological father has chosen to play no part in the child’s life, despite being aware of her existence. The parties agreed, and I am satisfied that Glenn in the case of Child B, and Terri and Maureen in relation to both children, all clearly love the children and want what is best for them. However, I accept Dr Z’s evidence that Terri and the paternal family have significantly different parenting styles. An arrangement where the children lived for the majority of time with one side was likely to reduce any harmful impacts on the children from exposure to such different parenting styles, particularly given their current young ages and stages of development. Further, I am also satisfied that the ongoing conflict between the two families has hindered their ability to make decisions in the best interests of the children, and that currently they have little, if any, ability to effectively communicate and cooperatively co-parent the children as would be needed, for example, in a shared-care arrangement such as was proposed by Terri.

66In terms of any family violence involving the child or a member of the child’s family: I am satisfied that Janelle has perpetrated significant family violence on various members of the paternal family, including – but not limited to – physically assaulting Glenn, damaging and/or destroying his property, and making threats of harm to Maureen and Ms Granger. I am also satisfied that Janelle and Glenn argued regularly during their relationship, and that the children were sometimes exposed to these arguments. I am also satisfied that Janelle has perpetrated family violence on various members of the maternal family, including Terri. This included damaging Terri’s property when Janelle was approximately 16 years of age, and in late 2018 smashing a window at Terri’s home. I am also satisfied that Child A was exposed to the aftermath of this latter incident, including seeing the smashed glass and her mother’s blood on the ground.

67In terms of any family violence orders: Glenn was granted a lifetime family violence restraining order protecting him from Janelle after her conviction for assault. Maureen was also granted a two-year family violence restraining order protecting her from Janelle, which order recently expired earlier in July 2020. Ms Granger is currently protected by a family violence restraining order from Janelle, which Ms Granger obtained after Janelle threatened to [cause her physical harm] in a post published to [social media].

68Next, 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 children: All parties agreed, and I am satisfied that the court should make final orders in relation to the two children. I hope that the finalisation of the proceedings will assist in lessening the ongoing conflict between the two families.

69In terms of any other fact or circumstance that I consider relevant: There are three remaining matters that I wish to address. Firstly, Terri suffers from a number of health issues, including an apparent longstanding dependence on Tramadol. Notwithstanding Terri’s awareness of the problems associated with addiction to this medication, and the advice of her GP to cease using medication, she has so far been unable to do so. During her evidence [Terri] evinced a determination to seek further assistance, and I wish her every success in being able to do so. Secondly, I accept Dr Z’s evidence that to ameliorate the change in Child B’s living arrangements consequent upon these orders, there should be a staggered introduction of additional time before she ultimately lives in Glenn’s primary care. Dr Z considered, and I am satisfied, that the timeframe proposed by the ICL was appropriate and in Child B’s best interests. Thirdly, at the conclusion of the trial, I raised with the parties the issues surrounding obtaining the consent for passports and for overseas travel, not just from Janelle but also from Child B’s biological father, and permitted them to make further submissions in relation to this issue if they chose to do so. Having heard from the parties in relation to this matter, I am satisfied that Glenn should be able to obtain passports for both children and to be able to take them overseas for holidays, without the necessity of having to obtain either Janelle’s or Child B’s biological father’s prior consent. I am not satisfied that either Janelle or Child B’s biological father are likely to deal with such requests in a positive child-focused manner, and it will inevitably lead to Glenn having to commence further proceedings to deal with these orders.

70There are no other matters under the considerations that I consider relevant.

What orders will the court make?

71Terri seeks an order that she and Glenn have equal shared parental responsibility for the children. On the other hand, the other parties seek an order that Glenn have sole parental responsibility for the children. If I made an order for equal shared parental responsibility, then Terri and Glenn would be required to consult with each other and make a genuine effort to come to a joint decision regarding the major long-term issues concerning the children. Major long-term issues means issues about their care, welfare and development of a long-term nature, and includes, but is not limited to, issues surrounding their current and future education, religious and cultural upbringing, health, name and changes to their living arrangements that make it significantly more difficult for them to spend time with a parent. Given the state of their relationship, I am not satisfied that Terri and Glenn are able to make a genuine effort to come to joint decisions regarding major long-term issues concerning the children. In my view the person with whom the children will primarily reside should have sole parental responsibility for them. I am satisfied that person is Glenn, for the reasons identified by me earlier in these Reasons.

72I wish to say one more thing in conclusion: Child A and Child B are very fortunate to have the love and support of two tremendously strong and loving grandmothers. There are many children who are not so lucky. Both Terri and Maureen stepped up to the plate to care for and provide for their grand-daughters when they were needed. They both now have the opportunity to step back and to simply enjoy their role as grandmothers. Both Terri and Maureen have much to offer these young girls, and both women owe it to their grand-daughters to swallow their pride and leave the past behind. Child A and Child B deserve to enjoy their relationships with both their grandmothers without labouring under a conflict of loyalties. I truly hope that eventually, Terri and Maureen will see that they have much more in common in sharing the joy of their granddaughters’ lives than they do in matters that (really should not) divide them.

These reasons are the reasons for decision I delivered on 23 July 2020, edited in places but only as to correct grammatical errors and some infelicity of expression without variation to the substance thereof.

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

KV
Associate

26 AUGUST 2020