Jagger and Lucy and Ors
[2020] FCWA 83
•28 MAY 2020
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: JAGGER and LUCY & ORS [2020] FCWA 83
CORAM: O'BRIEN J
HEARD: 14, 15, 18 and 19 MAY 2020
DELIVERED : 28 MAY 2020
FILE NO/S: PTW 1137 of 2014
BETWEEN: MS JAGGER
Applicant
AND
MR LUCY
First Respondent
AND
MS WALDEGRAVE
Second Respondent
AND
MS CULLEN
Third Respondent
Catchwords:
PARENTING - Where proceedings involving the parents, paternal grandmother and maternal great grandmother have been on foot since 2014 - Where the child has been in the primary care of the maternal great grandmother since the parents separated when he was aged 18 months - Where the single expert witness expresses the opinion that the child's primary attachment is to the maternal great grandmother - Where there is significant involvement of the Department of Communities and Police - Turns on its own facts.
Legislation:
Family Court Act 1997 (WA)
Category: Reportable
Representation:
Counsel:
| Applicant | : | Self-Represented Litigant |
| First Respondent | : | Self-Represented Litigant |
| Second Respondent | : | Self-Represented Litigant |
| Third Respondent | : | Self-Represented Litigant |
| Independent Children's Lawyer | : | Ms Brinkley |
Solicitors:
| Applicant | : | Self-Represented Litigant |
| First Respondent | : | Self-Represented Litigant |
| Second Respondent | : | Self-Represented Litigant |
| Third Respondent | : | Self-Represented Litigant |
| Independent Children's Lawyer | : | Legal Aid WA |
Case(s) referred to in decision(s):
Banks & Banks (2015) FLC 93-637
Bondelmonte & Bondelmonte (2016) 259 CLR 662
Re C & D (1998) FLC 92-815
Re Evelyn (1998) FLC 92-807
Rice & Miller (1993) FLC 92-415
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 Jagger & Lucey has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).
1These proceedings, which commenced in March 2014, concern the welfare of [Child A] who was born [in] 2012.
2Child A lives in [Town A] with his maternal great-grandmother, [Ms Jagger], who is the applicant in the proceedings. The first respondent in the proceedings, [Mr Lucy], is Child A’s father. The second respondent [Ms Waldegrave] is Child A’s mother. The third respondent, [Ms Cullen], is Child A’s paternal grandmother.
3Child A’s parents were not married. They lived together for approximately three years, separating in March 2014. Their relationship was marked by incidents of family violence. Both the Police and the Department of Communities (“the Department”) became involved with the family, with the Department conducting safety and well-being assessments and concluding that Child A was not safe in the care of his parents.
4Child A was about 18 months old when his parents separated. The Police became involved in the circumstances surrounding the separation, and delivered Child A into Ms Jagger’s care. He has been living with Ms Jagger since then.
The parties and their present circumstances
5The dynamics of this family are not uncomplicated, and the parties face a range of challenges not caused by the present dispute, but which impact upon it. It is appropriate to briefly summarise those circumstances so as to give context to what follows in these reasons.
The mother
6The mother has just turned 25. She is not presently employed, and lives with her partner, [Mr B], in [Town B].
7After separating from the father, the mother commenced a de facto relationship with [Mr C]. Both were then aged 19. They lived together in Town B, in [Town C] and in [Town D]. At one point, they moved in to live with the father in Town A. That relationship was marked by significant violence, albeit that in her documents first filed in the court proceedings the mother said that Mr C was “good with [Child A]” and “a supportive and caring partner”.[1]
[1] Mother’s Case Information Affidavit filed 1 August 2014, p. 9.
8The mother has a son by Mr C, [Child B] born in 2015. Child B was born premature after the mother sustained serious injuries inflicted by Mr C. Child B was taken into the care of the Department upon his discharge from hospital, as a result of what the Department recorded as being “his parents’ chronic family violence and methamphetamine use, placing him at risk of physical and emotional harm and neglect”.[2] Following a period of what was described as “disengagement with the Department” by the mother,[3] Child B was reunified into her care in May 2018, but concerns continued.
[2] Exhibit 7, p. 118.
[3] Ibid, p. 127.
9In August 2018, the mother presented to hospital requiring stitches, having self-harmed, and toxicology results indicated low levels of methamphetamine and marijuana.[4] There is other documentary evidence to confirm her acknowledged struggles with her mental health, including other incidents of self-harm. In October 2018, the relevant protection order was extended for a further 12 months.[5] Child B is now in the mother’s care. He has been diagnosed with Global Developmental Delay and displays autistic traits.[6]
[4] Ibid, p. 119.
[5] Ibid.
[6] Ibid, p. 127.
10Shortly after separating from Mr C, the mother entered into a de facto relationship with Mr B, who by the time of trial was 21 years old. That relationship continues, and they live together in Town B. She and Mr B have a daughter together, [Child C] born in 2017.
11In 2019, Child B reported that the mother pinches him and smacks him, and that Mr B also smacks both him and Child A. The Department conducted an assessment in October 2019, concluding that there was no evidence that Child B had been physically harmed, but that it was likely that the mother and Mr B were “resorting to inappropriate discipline strategies out of frustration”.[7] The Department concluded that Child B was safe to remain in their care, noting that they had, “albeit somewhat reluctantly”, agreed to participate in a parenting program to learn different strategies.[8]
[7] Ibid, p. 199.
[8] Ibid, p. 121.
12When the Department had further communication with the mother in late November 2019 she was noted as admitting that she was “struggling with sobriety” and “feeling very overwhelmed and stressed”.[9] To her credit, she had made contact with appropriate services, and had consulted with her doctor to commence on antidepressants. At trial she said that she was continuing in those efforts.
[9] Ibid, p. 125.
13Police records tendered into evidence showed that the mother was convicted of possession and supply of cannabis in the Children’s Court when aged 14. As an adult, she was convicted of aggravated assault arising from an incident in [mid] 2014, when she saw Child A, Ms Jagger and Ms Cullen at a park and became abusive. As Ms Jagger took Child A away from the scene, the mother is recorded as having punched Ms Cullen to the back of the head before being restrained and let away by the father.
14Subsequently, the mother was also convicted of obstructing public officers as a result of an incident that occurred in March 2016.
15The mother’s participation in the proceedings was intermittent. There was an extended period when she did not participate in them at all, and she did not engage with the single expert witness for the purposes of his updated report in August 2019. That said, she actively participated in the trial and in the discussions preceding it which led to a number of matters being agreed.
The father
16The father is a 35-year-old unemployed labourer who lives in Town A. He is not presently in a relationship, but shares his accommodation with [Mr D]. Evidence was given at trial by the officer in charge of the Town A police station to the effect that Mr D has had issues with drug use.
17Subsequent to his relationship with the mother, the father was in a de facto relationship for approximately two years with [Ms E]. Ms E has four children in her care. That relationship ended in about November 2019 not long after Ms E, who has mental health issues, had “disappeared” for two weeks, leaving her children in the care of the father. Ms E and her children now live in Town B and the father has occasional contact with them. He says that he has no present intention of resuming a relationship with Ms E, but they are on friendly terms, and he wishes to maintain contact with the children in particular.
18The father has struggled with alcohol use throughout his adult life. The single expert described him as being depicted as a “young man who is in the grip of a significant addiction”.[10] He reported to his drug and alcohol counsellor that he first used alcohol at the age of 14, and first became dependent on it at the age of 16.[11] He acknowledged consuming alcohol daily for over 19 years. During the course of the proceedings, hair testing in November 2017 confirmed ongoing excessive alcohol consumption, as did further testing in late October 2018.
[10] Single Expert Witness Report filed 19 January 2015, paragraph 63.
[11] Exhibit 3, p. 21.
19The father subsequently re-engaged with [Counselling Service A] (having sporadically sought assistance there in the past), and hair testing in May 2019 returned a negative result for alcohol consumption. Unfortunately, following his separation from Ms E, the father resumed drinking; initially his evidence was that his drinking was limited to one or two standard drinks once a week on a regular social occasion, and that is also what he told his counsellor. Under cross‑examination, however, he acknowledged drinking more heavily and more frequently.
20Police records tendered into evidence included incident reports as far back as February 2005, where the father was reported as having become violent towards his stepfather after a heavy day drinking. He has a number of alcohol-related driving convictions, and convictions in September 2016 for disorderly behaviour and giving false details to police. In [late] 2016, he was sentenced to 10 months imprisonment for assaulting a police officer in 2015. The incident occurred when he was stopped by police while driving, and was transported to the [Town F] Police Station for a breath test. He became aggressive towards police, punching one officer in the face and continuing to struggle while others sought to restrain him.[12]
[12] Exhibit 12.
21The police records also include incident reports arising during the relationship between the father and mother. In January 2012, the parties had been involved in a motor vehicle accident, which they said occurred when they were “following a person who was attempting self harm (sic)”. They attended the local hospital, as the mother was injured in the accident. A nurse called police alleging that the parties engaged in a verbal and physical altercation with each other while at the hospital.
22The documentary evidence demonstrates a pattern of the father minimising or denying the extent of his alcohol use. At various times, he expressed the view that he knew how to manage his drinking, did not have a problem with it, and went further to suggest that counsellors at Counselling Service A and [Counselling Service B] had told him as much.[13] Those views and suggestions were clearly wrong. Nevertheless, his most recent and ongoing engagement with Counselling Service A, and his achievement of a period of abstinence, represent progress on his part and are reflective of the efforts he has made, motivated by a desire to have Child A living with him.
Ms Cullen – the paternal grandmother
[13] Conference Memorandum dated 19 June 2015, p. 2.
23Ms Cullen is 57 years of age, and lives in [Town E]. She is not employed outside the home. She is the carer for her husband, [Mr F]. Her 21-year-old son [Mr G], and another boy she has taken in, live with them.
24Ms Cullen has been supportive of the father throughout the proceedings. At a child dispute conference in June 2015 she expressed the view that he posed no risk to Child A, saying that as far as she knew he could “take it or leave it” when it came to alcohol.[14] She expressed strong negative views about Ms Jagger and the mother as recently as very shortly prior to trial, saying in her updating affidavit that they had “attempted to discredit” the father by “making him out to be a violent person with a drinking problem”, suggesting that the mother in particular had done so due to bitterness about the separation and “as a form of punishment or payback”.[15] In early 2013, while still in a relationship with the father, the mother obtained a violence restraining order against her. Ms Cullen was subsequently charged with breaching that order by attending at the home then occupied by the father and mother.
[14] Ibid, p. 3.
[15] Ms Cullen’s Updating Affidavit filed 6 May 2020, p. 3 paragraph 11.
25Police records tendered into evidence also included incident reports from as far back as 2010, in which it was alleged that Ms Cullen had slapped her then 13-year-old daughter, [Ms H], across the face during an altercation about her behaviour, leading Ms H to leave the home to stay with friends. A further incident report showed police involvement in August 2015 when Mr G, who was then 16, acted in a threatening manner towards Ms Cullen during a heated argument, and was served with a 12 hour police order.
26At various times the relationship between Ms Jagger and Ms Cullen has been highly problematic; at other times it has been civil and cooperative. The relationship between Ms Cullen and the mother has been consistently poor.
Ms Jagger – the maternal great-grandmother
27Ms Jagger is 64 years of age, lives in Town A and is not employed outside the home. Her former husband, [Mr I], lives in separate accommodation on the same property.
28Ms Jagger has generally been supportive of the mother, while recognising the problematic nature of some of her behaviour and her relationships. The mother in turn has expressed her respect for, and gratitude towards, Ms Jagger for her care of Child A.
29Ms Jagger’s relationship with the father has been inconsistent. She finds him aggressive and abusive when drinking, and noted his failure to comply with various orders made during the course of the proceedings (and with requests made of him by the Independent Children’s Lawyer (“ICL”) pursuant to those orders). That said, she noted improvement in their working relationship when the father abstained from alcohol, and expressed disappointment at the deterioration in that relationship when he resumed drinking. She was particularly critical of his refusal to handover Child A’s medical records (which the parties referred to as “the [P] book”), attributing to that refusal a potentially dangerous situation when Child A was given medication to which he was allergic while in her care.
30Ms Jagger has at various times raised complaints of a prowler at her isolated property, and volunteered her suspicion that the father was stalking her or seeking to intimidate her.[16]
[16] Single Expert Witness Report filed 19 January 2015, paragraph 15.
31The father in turn told the single expert witness in late 2014 that he had “no relationship” with Ms Jagger, who “hates [his] guts”, while professing to have always tried to be nice to her.[17]
[17] Ibid, paragraph 3.
32Having made that statement, the father at one point in the proceedings raised suggestions that Child A might be at risk of sexual harm in the care of Ms Jagger. There was no evidence to support that concern, and it was not pursued.
33Ms Jagger’s relationship with Ms Cullen has also been variable, as already noted. At times they have got on well and been cooperative; at other times, they have not been on speaking terms. At one point, Ms Jagger insinuated that Ms Cullen had exposed Child A to sexually inappropriate behaviour; again, there was no evidence to support that concern and it was not pursued. [18]
[18] Single Expert Witness Report filed 31 March 2017, paragraphs 40 – 43.
34The police records tendered into evidence recorded an incident between Mrs Jagger and her former husband [Mr J] in 2010, at a time when they were separating. There was a dispute regarding Ms Jagger’s attendance at the home to collect her personal belongings, animals and furniture. Her reaction when she found the gate locked, with a notice purporting to prohibit her from entering, and the house locks changed led to police involvement. She was described by the attending police officer as “angry and unable to be reasoned with” (sic) and was issued with a 24-hour notice after allegedly threatening to return to the property “as soon as police left and smash the house in order to get all the animals and furniture”.
Brief summary of the proceedings to date
35The proceedings were commenced by Ms Jagger in March 2014. She sought sole parental responsibility for Child A, that he live with her, and that he spend time with his parents as agreed and supervised. In her case information affidavit filed with the application she said that prior to the parents separating they were Child A’s primary carers, but that they had left him unattended at times, and that the relationship between the parents was abusive. She said that the father had problems with alcohol, and was very volatile, and that Child A had been accidentally burned while in his care and required hospitalisation.
36On her evidence, the parties had separated on 1 March 2014 after an incident to which the police were called. Child A came into her care on that day. The police made it clear to the parents that Child A would otherwise be placed in the care of the Department.
37The matter came on for urgent hearing and orders were made by a magistrate on an interim basis. Those orders provided for Child A to live with Ms Jagger and spend time with the father as jointly agreed. The father’s time with Child A was to be professionally supervised.
38The father filed a response on 6 May 2014 seeking orders for Child A to live with him. He proposed orders for Child A to spend time with the mother and with Ms Jagger as agreed, but failing agreement each alternate weekend. In his case information affidavit the father denied any physical violence towards the mother, or any neglect of Child A. He alleged that the mother was abusing drugs and alcohol, and that she suffered from depression and had self-harmed. He implied that she had been abused as a child. He said that he had enrolled in an anger management workshop with [Counselling Service A]; and went on to say “I drink on occasion I wouldn’t say I was drunk every day or even every time I had a drink” (as per original).[19] As noted earlier in these reasons, that evidence significantly understated the father’s issues with alcohol.
[19] Father’s Case Information Affidavit filed 6 May 2014, p. 8.
39Ms Cullen was joined to the proceedings on 4 June 2014. She filed a response on 17 June 2014, proposing that Child A spend time with her if he was not returned to the parents, and that he live with her family if needed. In her case information affidavit, she said that she lived with her husband, Ms H and Mr G. She said that the father was Child A’s primary carer prior to separation, and asserted that the mother had shown little interest in spending time with Child A after separation. She raised issues regarding what she described as the mother’s “neglect and hygiene standards – state of house” and the father’s “fowl mouth (sic)”.[20] She said that both parents had issues with alcohol and verbal aggression, and that the mother had issues with drugs.
[20] Ms Cullen’s Case Information Affidavit filed 17 June 2014, p. 7.
40The mother filed her response on 1 August 2014. She sought parental responsibility, and that Child A live with her, spending time with the father on alternate weekends. On an interim basis she proposed that Child A have “controlled visits” with the father, and supervised time only with Ms Cullen. In her case information affidavit she said that she was in a de facto relationship with Mr C. She said that prior to separation she was Child A’s primary carer, that Ms Jagger had spent time with him on several occasions, but that Ms Cullen’s involvement with him had been minimal. She said that Ms Cullen had assaulted her in the past, and that Mr F had a “history of violent outbursts around minors”.[21] She alleged that Ms Cullen was emotionally and physically abusive, that Mr F was an abusive alcoholic, and that the father was abusive and suffered from alcohol dependency.
[21] Mother’s Case Information Affidavit filed 1 August 2014, p. 4.
41The single expert witness was appointed by consent on 22 September 2014. Orders were made for drug and alcohol testing, and over time a series of orders were made as to the living arrangements of Child A and the arrangements for him to spend time with the parties. On 13 June 2016, with the consent of all parties other than the mother, who did not attend the hearing, interim orders were made for Child A to live with Ms Jagger and spend time with the other parties.
42A readiness hearing was listed for 9 May 2017, and orders made for the filing of trial materials. The matter was listed for a trial to commence before me on 17 October 2017.
43On 19 September 2017, after the parties had participated in a dispute resolution conference facilitated by Legal Aid Western Australia, that trial listing was vacated by consent, with orders being made on an interim basis for Child A to spend time with the mother each alternate Saturday or Sunday, partially supervised by Ms Jagger, and for him to spend time with the father each alternate Saturday or Sunday supervised by Ms Cullen. An additional order was made for Child A to spend time with Ms Cullen on one Friday per month. The parties agreed that the proceedings should be monitored by the court in or about February 2018, and that they would participate in a further dispute resolution conference in January 2018.
44The proceedings were subsequently adjourned further by consent and the parties attended a dispute resolution conference on 29 March 2018. They reached a further interim agreement at that conference, whereby Child A would continue to live with Ms Jagger until 28 December 2018 before moving to live with the mother and spend alternate weekends with the father. Detailed orders were made for a progression to that agreed goal.
45Difficulties arose, and on 29 October 2018 the father and Ms Jagger informed the court that they no longer consented to the proposed move into the mother’s care. Child A had allegedly disclosed that Mr B had been violent towards him, and the Department was investigating. There were also issues as to the mother’s compliance with requests for drug testing. On 26 November 2018, orders were made by consent for Child A’s time with the father to be supervised, for Child A to continue to live with Ms Jagger, and for him to continue to spend time with the mother but on the basis that she was restrained by injunction from allowing him to be left unsupervised with Mr B. Orders were also made to facilitate hair strand testing of the mother.
46The proceedings were then progressed again towards trial, and were eventually listed before me.
47The parties had not complied with various orders to file affidavits for the purposes of trial. Their evidence was significantly out of date, having largely been filed in 2017. Accordingly, at a status hearing on 29 April 2020, I made orders permitting the parties to file updating affidavit material, which they did.
48Given the state of the evidence, I also made orders for the trial to proceed in a manner which would see the ICL present her case first, so that the parties could respond as appropriate to the evidence adduced by her. Orders were also made for each party to annotate a copy of the preliminary Minute of proposed orders which had been prepared by the ICL, so as to indicate their respective positions in relation to all matters.
The proposals of the parties and matters requiring determination
49The ICL facilitated discussions between the parties prior to trial, and distilled their competing proposals to assist the court in identifying at the start of the trial those matters actually in dispute. At the commencement of the trial, she tendered a consolidated Minute which summarised the matters in dispute, and the orders which could be made by consent.
50At that point, there remained a dispute about with whom Child A should live. Ms Jagger proposed that Child A should continue to live primarily with her. She was supported in that position by the mother and Ms Cullen. The father proposed that Child A should live primarily with him. A number of other matters remained in dispute.
51In accordance with the orders which I had made at the status hearing, the ICL presented her case first, and the single expert witness gave evidence on the second day of trial. The parties were given the opportunity for further conferral after the single expert and the ICL’s witnesses had given their evidence.
52To their credit, and with the assistance of the ICL, the parties were able to reach further agreement in that process. Importantly, having heard that evidence and having had the opportunity to test it in cross examination, they agreed that an order should be made for Child A to live with Ms Jagger.
53Various detailed orders were made by consent at the start of the third day of the trial. They included the orders just referred to, and orders as to the time Child A is to spend with the other parties.
54In particular, the orders agreed at that point:
(a)provided for Child A to spend time with the father during school term from after school Friday to 5.00 pm Sunday in week one of a three week cycle, and from after school Friday to 12.00 pm Saturday in week two, with an agreed increase after six months, conditional upon him undertaking breathalyser tests for alcohol on agreed terms during Child A’s time with him;
(b)made provision for the time Child A is to spend with each party during school holidays and on special occasions;
(c)provided for the mother to spend supervised time with Child A, and for that time to increase and become unsupervised absent any negative report from the supervising agency and upon provision of a clean hair strand test;
(d)provided for Child A to communicate electronically with his parents;
(e)provided for both parents to undertake further hair strand testing;
(f)contained detailed provisions requiring both parents to participate in further counselling to address their respective issues;
(g)made provision for interstate holidays;
(h)required the provision by Ms Jagger of information about Child A to the parents; and
(i)put in place appropriate injunctions.
55The matters then remaining in dispute, and requiring determination, included the question of whether, having provided a clear hair strand test, the mother should be required to nevertheless undertake further urinalysis testing, the conditions upon which Child A’s time with the mother should progress from blocks of four hours to overnight unsupervised time, and the period for which the mother should be restrained by injunction from leaving Child A unsupervised in the care of Mr B.
56Late on the third day of trial, it became apparent that some of those matters might still be capable of resolution by agreement. The ICL facilitated further discussions between the parties, and further orders were made by consent at the start of the fourth day of trial.
57The only remaining matters requiring determination by the court, accordingly, are as summarised below.
Parental responsibility
58Ms Jagger proposes that she should have sole parental responsibility for Child A. She is supported in that position by the mother.
59The father proposes that he and Ms Jagger should have equal shared parental responsibility. Ms Cullen proposes that no order for parental responsibility be made; in effect, she says that there has been no need for an order for sole parental responsibility to date and she accordingly sees no need for such an order moving forward. In fairness, in making that submission she was clearly unaware that the effect of her proposal would be a reversion to the statutory position whereby the parents would each have parental responsibility, to the exclusion of Ms Jagger.
60The ICL submitted that an order for equal shared parental responsibility would be contrary to Child A’s best interests. She submitted that Ms Jagger should have sole parental responsibility, but with a requirement that she consult with the parents and take their views into account before making decisions about major long-term issues for Child A. In closing submissions, both Ms Jagger and the mother indicated their acceptance of that proposal.
Injunction relating to the father’s ex-partner and her children
61Ms Jagger and the mother both sought that the father be restrained by injunction from bringing Child A into contact with his former partner, Ms E and her children. They cited concerns regarding Ms E’s mental health and alleged drug use, and bullying of Child A by her children. They alleged further that those children had tried to teach Child A how to shoplift.
62During the course of her cross-examination, Ms Jagger indicated that she would be content with an injunction which restrained the father from taking Child A to the home of Ms E or leaving him unsupervised with her.
63The father disputed the proposition that any injunction was necessary. He was supported in that position by Ms Cullen.
64The ICL submitted that there was no evidence sufficient to support the making of the injunction sought.
Ancillary matters
65Consistent with the agreed position that Child A is to live with her, and her proposal in relation to parental responsibility, Ms Jagger sought an order requiring the father to deliver up to her Child A’s medical records, immunisation records and the like. She was supported in that regard by the ICL and the mother, and Ms Cullen did not seek to be heard on the point.
66The mother was resistant to a request that she state her residential address when giving evidence, alleging that she was fearful of stalking behaviour by Ms Cullen and the father, and had found it necessary to change her residential address relatively recently. The father initially sought an order that the mother be required to disclose her residential address before spending unsupervised time with Child A; in the course of submissions, however, both he and Ms Jagger accepted the proposition that the necessary safeguards for Child A would be achieved by the mother keeping only Ms Jagger informed at all times of her residential address. The mother had no difficulty with that, and Ms Jagger accepted the proposition that she be restrained by injunction from informing the father or Ms Cullen of the mother’s address.
67Little need be said about those ancillary issues. Given the agreed position that Child A is to live with Ms Jagger, she should clearly have all his relevant medical and associated records in her possession. That is simply reinforced by the order which I propose to make in relation to parental responsibility, for reasons set out later in this judgment.
68Similarly, it is clearly appropriate that Ms Jagger should know where the mother is living at any time Child A is to spend unsupervised time with her. There is no need relating to Child A’s welfare for either Ms Cullen or the father to be kept informed of the mother’s address; given the history of conflict and accusations, it may in any event be preferable that they be in a position to say that they do not know it.
69The only issues of substance still requiring determination, therefore, are the questions of parental responsibility and the proposed injunctions in relation to Ms E.
The evidence at trial
70Ms Jagger relied on the following affidavits:
(a)her case information affidavit filed on 5 March 2014;
(b)her trial affidavit filed on 3 April 2017;
(c)her supplementary affidavit filed on 17 May 2017; and
(d)her updating affidavit filed on 11 May 2020.
71The father relied on the following affidavits:
(a)his case information affidavit filed on 6 May 2014;
(b)his trial affidavit filed on 26 April 2017; and
(c)his updating affidavit filed on 11 May 2020.
72The mother relied on the following affidavits:
(a)her case information affidavit filed on 1 August 2014;
(b)her trial affidavit filed on 3 April 2017;
(c)her supplementary affidavit filed on 17 May 2017; and
(d)her updating affidavit filed on 11 May 2020.
73Ms Cullen relied on the following affidavits:
(a)her case information affidavit filed on 17 June 2014;
(b)her trial affidavit filed on 20 April 2017; and
(c)her updating affidavit filed on 6 May 2020.
74None of the parties called any witnesses.
75The ICL relied on the following affidavits of the single expert witness, [Mr K]:
(a)his affidavit filed on 19 January 2015;
(b)his affidavit filed on 31 March 2017; and
(c)his affidavit filed on 29 August 2019.
76Conference Memoranda prepared by family consultants and dated 7 March 2014, 21 May 2014, 19 June 2015, and 9 February 2016 were in evidence. The family consultants were not required for cross-examination.
77[Ms L], a drug and alcohol counsellor presently assisting the father, gave evidence under a subpoena issued at the request of the ICL, as did [Sergeant M] of the Western Australia Police, who is the officer in charge at Town A.
78With the consent of all parties, documents produced by the Department and by the Education Department were tendered into evidence.
The legal principles
79The proceedings fall to be determined pursuant to the Family Court Act 1997 (WA) (“the Act”). The court must be guided by the objects of Part 5 of the Act and the principles underlying them.
80Parental responsibility is defined in s 68 as meaning all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. Pursuant to s 69, subject to any order of a court, each of the parents of a child who is not 18 has parental responsibility for that child.
81Section 70A requires the court, when making a parenting order, to apply a presumption that it is in the best interests of the child for his parents to have equal shared parental responsibility. The presumption does not apply as between the parents and the other adults involved in the proceedings. The presumption does not apply, in any event, if there are reasonable grounds to believe that a parent of the child, or another relevant adult, has engaged in abuse of the child or family violence. If the presumption applies, it may still be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility.
82If an order is to be made for Child A’s parents to have equal shared parental responsibility for him, the court is required to consider whether certain living arrangements would be in his best interests. As no party suggests such arrangements, and for reasons which follow in relation to the issue of parental responsibility, those statutory considerations need not be detailed further.
83In determining what is in a child’s best interests, the court must consider the matters set out in s 66C. While those matters are divided in the legislation into primary and additional considerations, the primary considerations do not necessarily outweigh any combination of the additional considerations.
84The first of the primary considerations and a number of the additional considerations by their terms apply only to the consideration of what orders should be made as between parents; their relevance to the present dispute must be viewed in that context.
85Otherwise, the issues that are joined between the parties will dictate which s 66C factors are relevant. Where, as in this case, the issues requiring determination by the court are narrow, self-evidently few of the s 66C factors will inform that determination.
86The requirement to consider each matter set out in s 66C does not mean that each factor must be expressly discussed in a judgment where the factor in question has no sufficient relevance in the circumstances of the individual case to displace the determinative significance of factors specifically discussed.[22]
[22] Banks & Banks (2015) FLC 93-637.
87In determining what orders are in the child’s best interests, the biological parent does not, merely by virtue of biological parentage, “stand in any preferred position”.[23]
[23] Re C & D (1998) FLC 92-815, [10.10]; see also Rice & Miller (1993) FLC 92-415 and Re Evelyn (1998) FLC 92-807.
88Ultimately, the making of a parenting order involves the exercise of judicial discretion. The primary considerations set out in the legislation are “matters to be borne in mind as consistent with the objects” of Part 5 of the Act. The additional considerations set out in the legislation:
… require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgments in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of the child”.[24]
The parties as self-represented litigants and the role of the ICL
[24] Bondelmonte & Bondelmonte (2016) 259 CLR 662, 673 [32].)
89All parties were self-represented throughout the proceedings, and at trial.
90That led to considerable difficulties in relation to fundamental requirements for a proper determination of what orders should be made in Child A’s best interests. The parties, with no disrespect to them, were unable to comply with various procedural orders made during the course of the proceedings so as to clearly articulate the relief which they sought. They were also unable to adduce the necessary evidence to support their respective positions, or even to enable an understanding of the family dynamics and history as outlined earlier in these reasons.
91In those circumstances, the role of the ICL was critical. She conferred with the parties, and distilled their respective proposals so as to narrow the issues and clearly define the matters in dispute. Importantly, she acted independently of the parties to ensure that adequate evidence was before the court to enable a proper determination for Child A’s benefit. Her cross-examination of the parties was also of considerable assistance, as was her measured approach in her dealings with the parties throughout.
92In short, the ICL fulfilled her difficult role admirably.
93The father, Ms Jagger and Ms Cullen all attended court personally throughout the trial. As Child B has particular health difficulties, with the agreement of the other parties and the ICL the mother participated in the first three days of trial by video link, attending personally only on the fourth day of trial in order to give her evidence.
94At the commencement of the trial I explained to the parties various matters so as to ensure that they properly understood the process.
95I explained the steps that I was required to take to ensure procedural fairness. I informed them of the manner in which the trial was to proceed, the order in which they would give their evidence and make submissions, and their right to cross-examine.
96I explained the importance of cross-examination and the likelihood that evidence that was not challenged in cross-examination would be accepted.
97I explained that they would be permitted to give updating evidence-in-chief as to facts arising after the date on which their most recent affidavits were sworn, and I explained the nature and purpose of re-examination.
98I set out the principles to which the court is required to give effect in conducting child-related proceedings. In particular, I explained the principle requiring me to actively direct, control and manage the conduct of the trial.
99I explained that the formal rules of evidence did not apply other than in certain limited circumstances.
100All parties had been directed to the handbook for self-represented litigants, and other resources produced by the court. By that process, and by directions I gave them at trial, they had the relevant law drawn to their attention.
101I explained to the parties my obligation to attempt to clarify the substance of their submissions so as to ensure that I properly understood their cases as they wished them to be put. I emphasised the need to focus both in evidence and in submissions on Child A’s best interests as the paramount consideration. I explained that an exploration of past events would only be useful to the extent that it might inform decision-making for the future, but that the parties should not hesitate to explore past events if they considered them to be relevant to the decisions to be made.
102While understandably they struggled at times, I am satisfied that the trial proceeded in a manner which afforded procedural fairness to all parties.
The first issue for determination – parental responsibility
103As already noted, the statutory presumption as to parental responsibility is that it is in the best interests of the child for his parents to have equal shared parental responsibility; the presumption does not extend to grandparents or great-grandparents. In this case, no party suggests that it is in Child A’s best interests for his parents to have equal shared parental responsibility for him. In any event, the statutory presumption does not apply as between the parents in this case, given the evidence in relation to family violence.
104The order proposed by the father would require decisions about major long-term issues in relation to Child A to be made jointly by him and Ms Jagger. The order would be taken to require each of them to consult with the other in relation to the decision to be made, and to make a genuine effort to come to a joint decision. It would not impose any requirement to consult on issues that are not properly characterised as “major long-term issues”.[25]
[25] Family Court Act 1997 (WA), ss 89AC & 89AD.
105Importantly, it would leave a vacuum in decision-making about major long-term issues in the event that the father and Ms Jagger were unable to come to a joint decision.
106While I accept that the father is sincere in his wish to be involved in decision-making about important issues for Child A, the order which he proposes would in my view be unworkable, and simply give rise to further conflict. As the ICL pointed out in her submissions, the fact that these proceedings have been on foot since 2014 gives a fair indication as to the difficulties encountered by the parties in reaching agreement, notwithstanding their mutual efforts during the course of the trial. While the father is presently engaged in the relevant process, and his efforts towards sobriety are to be commended, he has a long established track record of failing to comply in a timely fashion with court orders requiring him to (for example) undertake courses, engage with a psychologist, and submit to testing. He also has a track record of poor decision-making, including but not limited to circumstances relating to his problems with alcohol. His refusal to deliver Child A’s medical records to Ms Jagger, even after the frightening health incident referred to earlier in these reasons, gives rise to some concern about his insight.
107Further, the relationship between the father and Ms Jagger is strained, and apart from brief periods of improvement has been so for years. When asked in cross-examination to identify positive attributes of the father, Ms Jagger struggled to do so. The father maintains that Ms Jagger simply does not like him.
108I am unable to envisage the relationship between Ms Jagger and the father improving to a point where their ability to communicate, and mutual respect for each other’s views, would facilitate the joint decision-making required by an order for equal shared parental responsibility. In those circumstances, it would not be in Child A’s best interests to make such an order.
109That said, the father’s desire (and, for that matter, the mother’s) to be kept informed about important matters relating to Child A’s care and to be consulted in relation to significant decisions that Ms Jagger will need to make should be accommodated, both for their sake and for Child A’s.
110That accommodation is achieved by the orders proposed by the ICL, and with which Ms Jagger and the mother agreed. I propose to make orders in those terms.
The second issue for determination – injunctions
111In short, there was no evidence to support the injunction sought by Ms Jagger, and supported by the mother, prohibiting the father from bringing Child A into contact with Ms E and her children.
112The concerns raised by Ms Jagger arose largely from the acknowledgement by the father that Ms E has suffered from mental health issues, and from comments made by Child A as to his treatment at different times by Ms E’s children. In relation to the latter point, the evidence supports a conclusion that, at least at certain times, Child A has ‘given as good as he has got’ in his dealings with those children. I note also that when interviewed by the single expert in July 2019, admittedly prior to the father’s separation from Ms E, Child A reported that Ms E was nice to him, complaining only that her boys kept him awake at night.
113The mother acknowledged that she could not recall ever having met Ms E, and that the concerns she expressed were based solely on what she had been told by Ms Jagger, and what the father had told his counsellor about the circumstances of Ms E leaving her children with him and “disappear[ing]” for a period of two weeks, for what the mother inferred were drug-related issues.
114Ms E and her children now live in Town B. The father continues to live in Town A. While it appears that the father will try to maintain his friendship with Ms E, and his connection with her children who lived with him, there will be little opportunity for extended interaction between them and there is nothing on the evidence to support a conclusion that he would (for example) leave Child A in her care.
115I decline to make the injunction sought.
Orders
116As already noted, a significant number of orders were made by consent on the first day of the trial, and still further orders were made by consent on the fourth day of the trial. While those orders were promptly extracted, for the assistance of the parties I set out below both the orders already made by consent, and those which I will now pronounce in relation to the matters which remained in dispute.
1.All previous parenting Orders be discharged.
2.[MS JAGGER] have sole parental responsibility for the child, [CHILD A], born [in] 2012, (“the child”) provided that prior to making any decision as it relates to a major long-term issue concerning the child Ms [Jagger] shall:
(a)notify the Father, [MR LUCY], and Mother, [MS WALDEGRAVE], by email of the decision she intends to make and the reasons for the decision;
(b)seek the Father and Mother’s comments on the decision she intends to make;
(c)take into account any comments the Father and Mother make about the decision she intends to make, provided such comments are received, by email, from the Father and/or Mother within five days of notice being given by her; and
(d)notify the Father and Mother by email of the decision she has made.
3.The requirement of Ms [Jagger] to consult with the Father and Mother does not apply in the case of a medical emergency concerning the child.
4.The child live with Ms [Jagger].
5.During the school term, and until such time as the child is spending overnight weekend time with the Mother, the child spend time with the Father in a two weekly cycle as follows:
(a)in week 1, from after school on Friday (or 3:00 pm if not a school day) to 5:00 pm on Sunday;
(b)in week 2, from after school on Friday (or 3:00 pm if not a school day) to 12:00 pm on Saturday with the Father to ensure he facilitates the child attending [sporting activities] if the child would like to attend;
(c)or as otherwise agreed between Ms [Jagger] and the Father, with the Father acknowledging that in the event Ms [Jagger] will be travelling to [Town B] on a Saturday morning in week 2 to collect the Mother’s other child or children on Saturday in week 2, then Ms [Jagger] may contact the Father no later than 8:00 pm on Friday in week 2 to agree an earlier time to collect the child on Saturday morning with such time to be no earlier than 10:00 am.
6.after 6 months from the date of these Orders and subject to the Father’s breathalyser test results referred to in paragraph 15 below being negative for alcohol, the time the child spends with the Father pursuant to paragraph 5(a) above be extended to the commencement of school on Monday (or 9:00 am if not a school day).
7.in the event Relationship Australia’s availability for the child to spend time with the Mother pursuant to these Orders falls on the same weekend that the Father would ordinarily be spending time with the child pursuant to paragraph 5(a) above, then the child’s weekend time with the Father will swap so that week 1 becomes week 2 and vice versa to accommodate Relationships Australia’s availability.
8.in the event the child commences spending weekend overnight time with the Mother, then the child’s time with the Father pursuant to paragraphs 5 and 6 above shall be discharged and the child shall spend time with the Father as follows:
(a)each third weekend from after school on Friday (or 3:00 pm if not a school day) to the commencement of school on Monday (or 9:00 am if not a school day);
(b)each Tuesday from after school (or 3:00 pm if not a school day) until the conclusion of karate (or 6:00 pm if the child is not attending karate);
(c)or as otherwise agreed between Ms [Jagger] and the Father in writing.
9.During the school holidays, the child spend time with the Father for four (4) consecutive nights in the first week of each term 1, 2 and 3 school holidays commencing at 9:00 am on the Sunday following the conclusion of the school term to 5:00 pm on Thursday of the first week of the school holidays, or as otherwise agreed between Ms [Jagger] and the Father in writing.
10.During the school holidays, the child spend time with the Father for four (4) consecutive nights in the second, fourth and sixth weeks of the term 4 school holidays commencing at 9:00 am on Sunday to 5:00 pm the following Thursday, subject to paragraph 12 below regarding Christmas, or as otherwise agreed between Ms [Jagger] and the Father in writing.
11.In the event [MS CULLEN] takes up the opportunity to spend seven (7) consecutive nights with the child on one occasion per year pursuant to paragraph 19(c) below, then the Father will forego his period of four (4) nights for that particular school holiday period.
12.For the purposes of Christmas, the time referred to in paragraph 10 above shall be suspended from 2:00 pm Christmas Eve until 10:00 am Boxing Day and the child shall spend time with the Father from 2:00 pm Christmas Eve to 10:00 am Boxing Day in each even numbered year, or as otherwise agreed between the Ms [Jagger] and the Father in writing.
13.The child spend time with the Father on special occasions such as Father’s Day, the child’s birthday and Easter as agreed between Ms [Jagger] and the Father in writing.
14.The child spend such further or alternative time as agreed between Ms [Jagger] and the Father in writing.
15.For six (6) months from the date of these Orders, the Father shall provide to Ms [Jagger] a recording of him undertaking a breathalyser test:
(a)between 8:00 pm and 8:30 pm each evening that the child is in his care;
(b)between 7:00 am and 7:30 am each morning the child is in his care;
(c)or as otherwise agreed between the parties in writing.
16.In the event the Father’s breathalyser test result referred to in paragraph 15 above is positive for alcohol or he does not provide such test result, then the child shall return to the care of Ms [Jagger] and thereafter:
(a)the weekend time the child spends with the Father pursuant to these Orders shall be from 9:00 am to 5:00 pm on Saturday and 9:00 am to 5:00 pm on Sunday;
(b)the time the child spends with the Father during the school holidays shall be daytime only;
(c)or as otherwise agreed between Ms [Jagger] and the Father in writing.
17.In the event the Father’s hair strand test result referred to in paragraph 28 below falls within the excessive consumption of alcohol range then:
(a)the weekend time the child spends with the Father shall be from 9:00 am to 5:00 pm on Saturday and 9:00 am to 5:00 pm on Sunday;
(b)the school holiday time referred to in paragraphs 9 and 10 shall be suspended and the time the child spends with the Father during the school holidays shall be in accordance with paragraph 17(a) above.
18.For the purposes of handover in relation to the time the child spends with the Father, the Father shall collect the child from school at the commencement of his time, or in the event of a non-school day from Ms [Jagger]’s home, and return the child to Ms [Jagger]’s home at the conclusion of his time, or as otherwise agreed between Ms [Jagger] and the Father.
19.The child spend time with [Ms Cullen]:
(a)for three (3) consecutive nights in each of the term 1, 2 and 3 school holidays from 5:00 pm on Thursday of the first week of the school holidays to 5:00 pm on Sunday to coincide with the week the Father is spending with the child, or as otherwise agreed between Ms [Jagger] and [Ms Cullen] in writing;
(b)for three (3) consecutive nights in the second, fourth and sixth weeks of the term 4 school holidays, from 5:00 pm on Thursday to 5:00 pm on Sunday to coincide with the week the Father is spending with the child, with such time to be suspended from 2:00 pm on Christmas Eve to 10:00 am on Boxing Day, or as otherwise agreed between Ms [Jagger] and [Ms Cullen] in writing;
(c)on one (1) occasion per year, for seven (7) consecutive nights for the purposes of taking the child on a holiday, with such nights to be made up of [Ms Cullen]’s existing three (3) nights and the Father’s four (4) nights for that particular week.
(d)such further or alternative time as agreed between Ms [Jagger] and [Ms Cullen] in writing.
20.For the purposes of handover in relation to paragraph 19 above, the Father shall deliver the child to [Ms Cullen] at the commencement of her time and [Ms Cullen] shall return to the child to the care of Ms [Jagger] at [her home] at the conclusion of that time, or as otherwise agreed between Ms [Jagger], the Father and [Ms Cullen] in writing.
21.Subject to the availability of Relationships Australia, the Mother spend time with the child supervised by Relationships Australia for two (2) hours per fortnight, with the cost of intake and supervision to be met by the Mother.
22.Upon the completion of eight (8) visits the Mother request and pay for a report from Relationships Australia.
23.In the event the report does not have any negative comments regarding the time between the child, the Mother and/or the Mother’s partner, and subject to the Mother having provided a clean hair strand test result as provided for in these Orders, then the child spend unsupervised time with the Mother:
(a)for four (4) hours during the day each alternate weekend;
(b)from 10:00 am to 5:00 pm on Boxing Day each even numbered year, with the Father to deliver the child to the Mother at the conclusion of his time on Boxing Day at McDonalds [Town B Shopping Centre] in the event he is in [Town B] with the child on Boxing Day, or handover to otherwise occur at [Suburb A] Train Station or as otherwise agreed between the Mother and Father with respect to handover;
(c)or as otherwise agreed between the Mother and Ms [Jagger] in writing.
24.Upon the Mother’s time becoming unsupervised, handovers shall take place between Ms [Jagger] and the Mother in [Suburb A], or as otherwise agreed between Ms [Jagger] and the Mother in writing.
25.In the event Ms [Jagger] is collecting the Mother’s other children from the Mother while the Mother’s time with the child is being supervised by Relationships Australia, the parties acknowledge that the child may be present for the handover but will not spend time with the Mother.
26.The child have telephone/Skype contact with the Father each Thursday between 5:30 pm and 6:30 pm with the Father to initiate the call, or such other time as agreed between Ms [Jagger] and the Father.
27.The child have telephone/Skype contact with the Mother each Tuesday between 3:30 pm and 4:30 pm with the Mother to initiate the call, or such other time as agreed between Ms [Jagger] and the Mother.
28.Subject to Legal Aid WA funding, the Father and Mother undertake a further hair strand test for illicit substances and alcohol within 14 days of a request by the Independent Children’s Lawyer.
29.The Father shall continue to attend upon [Counselling Service A] for counselling and shall follow the recommendations of the counsellor in relation to treatment/frequency of appointments.
30.The Mother shall continue to attend upon [Counselling Service C] for counselling and shall follow the recommendations of the counsellor in relation to treatment/frequency of appointments.
31.Within 14 days of the date of these Orders the Father shall attend upon his GP to obtain a referral to a psychologist to deal with strategies to manage anger and shall follow the recommendations of the counsellor in relation to treatment/frequency of appointments.
32.The mother shall regularly attend upon her GP with respect to her mental health and shall follow the recommendations of her GP with respect to treatment/medication.
33.The Independent Children’s Lawyer be at liberty to provide a copy of these Orders to [Counselling Service A], the father’s treating psychologist and [Counselling Service C].
34.The parties be at liberty to remove the child from the State of Western Australia for the purposes of an interstate holiday during the time they spend with the child upon providing Ms [Jagger] with the following:
(a)21 days’ notice of the intended travel including an itinerary and return flight details (if applicable); and
(b)contact details for the child while he will be away.
35.Ms [Jagger] be at liberty to remove the child from the State of Western Australia for the purposes of an interstate holiday either during the time the child is in her care or during the time the Mother, Father or [Ms Cullen] spend with the child, provided that in the event the holiday occurs when the child would otherwise be spending time with the Mother, Father or [Ms Cullen], Ms [Jagger] shall arrange make-up time with the affected party.
36.In the event Ms [Jagger] intends to travel with the child as provided for in paragraph 35 above, then she shall provide the other parties with the following:
(a)21 days’ notice of the intended travel including an itinerary and return flight details (if applicable); and
(b)contact details for the child while he will be away.
37.Ms [Jagger] shall keep the Father and Mother informed of any significant medical issues concerning the child as soon as practicable.
38.Ms [Jagger] shall keep the Father and Mother informed of any medical or allied health professionals treating the child and authorise the child’s treating medical practitioners to release information to the Father and Mother upon request and to discuss the child’s health with each of them.
39.Ms [Jagger] shall authorise the child’s school to release information to the Father and Mother, including school reports and newsletter, and the Father and Mother shall be permitted to attend the child’s school for events to which parents would normally be invited.
40.On a without admission as to need basis, the Father be restrained and injunction is hereby granted from:
(a)consuming alcohol 12 hours prior to and during the time the child is in his care;
(b)allowing [Mr D] to remain at his property while the child is in his care;
(c)allowing the child to come into contact with [Mr C].
41.On a without admission as to need basis, the Mother be restrained and an injunction is hereby granted restraining her from allowing her other children or her partner to attend the first four (4) visits at Relationships Australia.
42.On a without admission as to need basis, the Mother be restrained and an injunction is hereby granted restraining her from using alcohol to excess or illicit substances while the child is in her care.
43.On a without admission as to need basis, the parties be restrained and an injunction is hereby granted restraining them from:
(a)physically disciplining the child or allowing any third party to do so;
(b)denigrating any of the other parties or a member of another party’s family in the hearing or presence of the child or allowing any third party to do so.
44.On a without admission as to need basis, Ms [Jagger] is restrained and an injunction is hereby granted restraining her from allowing the child to come into contact with [Ms N] at her home.
45.In the event the parties are unable to reach agreement about future time the child spends with the Father and Mother then not less than 18 months from the date of these Orders the parties shall attend mediation at Relationships Australia to discuss the ongoing arrangements for the child.
46.For three (3) months following the Mother undertaking a hair strand test pursuant to paragraph 28 above, the Mother undertake random supervised broadscreen urinalysis testing (to include alcohol) at a collection centre at the request of Ms [Jagger] on the following conditions:
(a)the requests shall be complied with within 24 hours of Ms [Jagger] sending an SMS to the Mother;
(b)the frequency of the tests shall not exceed once per fortnight;
(c)the cost of the tests shall be borne by the Mother; and
(d)the Mother shall authorise the release of the results to Ms [Jagger] and the Father.
47.Following six (6) months of unsupervised time between the child and the Mother in accordance with paragraph 23(a) above, and subject to the Mother providing clean urinalysis test results in compliance with these Orders, the child spend time with the Mother:
(a)each third weekend from after school on Friday (or 3 pm if not a school day) to 5 pm on Sunday;
(b)on special occasions such as Mother’s Day, the child’s birthday and Easter as agreed between Ms [Jagger] and the Mother in writing.
48.The child shall spend such further or alternative time as agreed between Ms [Jagger] and the Mother in writing.
49.In the event the Mother’s urinalysis test results referred to in paragraph 46 above are positive for any illicit substances other than amphetamines, then the time referred to in paragraph 47(a) above shall revert to 9:00 am to 5:00 pm on Saturday and 9:00 am to 5:00 pm on Sunday.
50.In the event the Mother’s urinalysis test results referred to in paragraph 46 above are positive for amphetamines, then the time referred to in paragraph 47 above shall revert to supervised time for two (2) hours each third fortnight with such supervision to be as agreed between Ms [Jagger] and the Mother.
51.On a without admission as to need basis, upon the child’s time with the Mother progressing from supervised to four (4) hours unsupervised as provided for at paragraph 23(a) above, the Mother be restrained and an injunction is hereby granted restraining her from allowing the child to be left in the unsupervised care of her partner [Mr B] for more than 30 minutes for a period of three (3) months.
52.Within seven days, the father must deliver up to Ms [Jagger] [Child A]’s original medical records, including his record of vaccinations and the like.
53.Prior to [Child A] spending unsupervised time with her pursuant to these orders, the mother must inform Ms [Jagger] of her current residential address.
54.Thereafter, the mother must at all times keep Ms [Jagger] informed of her residential address.
55.Without admission as to need, Ms [Jagger] is restrained by injunction from informing any other person (including but not limited to the father and [Ms Cullen]) of the mother’s residential address.
56.Subject to the institution of an appeal by any party or the Independent Children’s Lawyer, the Independent Children’s Lawyer be discharged 7 months from the date of these Orders, to allow facilitation of the further hair strand test referred to in paragraph 28 above.
57.All subpoena documents be returned to source or destroyed.
58.In relation to material tendered as an exhibit into evidence in these proceedings:
(a)all parties must collect the exhibits tendered by them (“their exhibits”), from the Chambers of Justice O’Brien, at least 28 days, and no later than 42 days, from the date hereof;
(b)all parties must contact the Chambers of Justice O’Brien to arrange the collection of their exhibits; and
(c)in default of compliance with subparagraph (a), all material tendered as an exhibit, save and except for material produced pursuant to subpoena, will be destroyed by the Court without notice to the parties.
59.In the event of an appeal being lodged prior to the expiration period of 42 days, paragraphs 57 and 58 above do not apply.
60.All outstanding applications and responses be and are hereby dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
KM
Associate28 MAY 2020
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