JENKINS (by his Case Guardian, MS SMITH) and JONES
[2021] FCWA 72
•28 APRIL 2021
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: JENKINS (by his Case Guardian, MS SMITH) and JONES [2021] FCWA 72
CORAM: TYSON J
HEARD: 21 and 22 JANUARY 2021 and 18 FEBRUARY 2021
DELIVERED : 28 APRIL 2021
PUBLISHED : 10 MAY 2021
FILE NO/S: [Redacted]
BETWEEN: MR JENKINS (by his Case Guardian, MS SMITH)
Applicant
AND
MS JONES
Respondent
Catchwords:
FAMILY LAW – Property – Discrete issues in dispute – Where there is limited property available for decision – Where the applicant received a total and permanent disability payment after separation – Where each party is reliant on government benefits – Just and equitable – Case turns on its own facts
FAMILY LAW – Parenting – Narrow issue in dispute relating to suspension of children's time with the applicant – Case turns on its own facts
Legislation:
Family Law Act 1975 (Cth) s 60CC, s 75, s 79, s 102NA(2)
Category: Reportable
Representation:
Counsel:
| Applicant | : | Mr Rodda |
| Respondent | : | Mr Gardner |
| Independent Children's Lawyer | : | Ms Stokes |
Solicitors:
| Applicant | : | Legal Aid WA |
| Respondent | : | Bannerman Solicitors |
| Independent Children's Lawyer | : | Eagle Bay Legal |
Case(s) referred to in decision(s):
Baghti & Baghti and Ors [2015] FamCAFC 71
Banks & Banks (2015) FLC 93-637
Bondelmonte v Bondelmonte (2016) 259 CLR 662
Lawrie & Lawrie (1981) FLC 91-102
M v M (1988) 166 CLR 69
Stanford v Stanford (2012) 247 CLR 108
T & D & Anor [2006] FamCA 1248
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 Jenkins and Jones has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
TYSON J:
1The applicant father, [Mr Jenkins] and the respondent mother, [Ms Jones] commenced living together in 2003 and married in 2008. The parties separated in [mid-2011], but continued to live under the one roof until 2014. The mother and father have reconciled from time to time, including following the father's diagnosis with [a neurodegenerative disease]. They have since divorced.
2The parents have four children: [Child A] born [in] 2004, [Child B] born [in] 2008, [Child C] born [in] 2011 and [Child D] born [in] 2013. Child A is 16 years old and has [Medical Condition A]. Child B is 12 years old. He has [a rare] disease. Child C is nine and Child D is eight years of age.
3Following separation, the parties have been unable to agree on the parenting arrangements for their children, and orders by way of alteration of property interests. The proceedings have been complicated by:
(a)The father's deteriorating health, issues surrounding his capacity to participate in the proceedings, and the subsequent appointment of a case guardian;
(b)The risk allegations raised by each parent, resulting in the appointment of an Independent Children's Lawyer;
(c)The mother's allegations that she and the children have been the victim of extensive family violence at the hands of the father, including allegations the father has continued to behave in a controlling and coercive manner towards the mother, throughout the proceedings;
(d)The father's failure to comply with the Family Violence Restraining Orders ("VRO") granted for the protection of the mother, and his reluctance to comply with orders to spend supervised time with the children;
(e)Numerous difficulties during supervised visits involving the father and paternal grandmother, which has resulted in professional supervision services terminating their involvement with the family; and
(f)The modest property available for division, and the strained financial circumstances of the parties.
4To the great credit of the parties, assisted by their solicitors and the ICL, the parenting issues narrowed considerably by the time of trial. The parenting issues in dispute relate to who is to supervise the father's time with the children, and the terms and conditions of supervision. The property issues in dispute are limited to the timing in which the father is to pay an agreed lump sum to the mother, and the consequences if he fails to do so. The proceedings are governed by the Family Law Act 1975 (Cth) ("the Act").
PARENTING
5The parties have agreed many parenting issues. The children will live with the mother, and she will have sole parental responsibility, subject to providing the father with notice prior to making any major long-term decisions. Child A will communicate and spend time with the father in accordance with his wishes, as will each of the children when they are 15 years of age. They have agreed to orders in relation to their communication, provision of information, and restraints as to their conduct. The agreed orders are set out in full, at the conclusion of the Reasons.
WHAT ARE THE PROPOSALS OF THE PARTIES?
6The mother supports the proposals of the ICL. The ICL proposes[1] Child B communicate and spend time with the father in accordance with his wishes. She proposes Child C and Child D spend up to two hours with the father, supervised by a professional service, at his cost. She seeks the visits occur in a communal living area in the father's home, the father be dressed, and not smoke during visits, with the paternal grandmother permitted to be present. She proposes a supervision report be prepared at the end of each visit, at the father's cost. If the father fails to comply with the orders, or the supervisors determine the visits should end, they have discretion to terminate the visits. If the visits are terminated because of the father's non‑compliance, then the visits should occur at a supervision centre.
[1] Minute of Final Orders Sought dated 20 January 2021.
7The ICL seeks a number of injunctions, restraining the father from shouting or yelling at the children or the paternal grandmother, speaking in an offensive or disparaging manner about the paternal grandmother or the mother in the presence or hearing of the children, and similarly, speaking in an offensive or disparaging way directly to the children or the supervisor.
8The father proposes[2] Child B, Child C and Child D spend time with him for two hours on a Saturday at his home, to be supervised by [Mr A], [Ms B], [Ms C], or [Ms D]. If those proposed supervisors are not available, he suggests [Supervision Service A] provide supervision, at a cost shared between the parents, with a report to be prepared only if requested by the mother.
[2] Minute of proposed final orders forming part of his papers for the judge filed 15 January 2021.
9The father does not agree that Child B's time should be dependent on his wishes. He seeks the children spend time in his bedroom, the shed or other locations in his home. He does not agree to the supervisor being able to terminate visits, nor to the injunction restraining him from yelling or shouting at the paternal grandmother or the children, or speaking in an offensive manner towards her, or to his time reverting to a supervision centre.
THE PARTIES AND THEIR EVIDENCE
10The father relied on his affidavits filed 1 March 2019 and 6 August 2020, his financial statement filed 6 August 2020, the affidavits of [the Paternal Grandmother] filed 1 March 2019 and 18 February 2021, the affidavit of [Dr E] filed 5 August 2020, and the affidavits of Mr A, Ms B, Ms C and Ms D each filed 7 January 2021. The mother relied on her affidavits filed 17 April 2019, 11 August 2020, and 14 January 2021, together with her financial statement filed 14 January 2021. The parties also relied on the affidavits of the Single Expert Witness, [Dr F], filed 19 January 2021, 23 April 2020, and 17 January 2018. A number of documents were tendered as exhibits, by consent, including Supervision Service A’s supervision reports.[3]
[3] Exhibit 1, the supervision reports of Supervision Service A dated 27 June 2020, 26 July 2020, 6 September 2020, and 31 October 2020.
11On 7 June 2019, orders were made pursuant to s 102NA(2) of the Act. Each parent was then granted funding under the Commonwealth Family Violence and Cross-Examination of Parties Scheme, and they were legally represented during the trial.
12On the first day of the trial, orders were made by consent, granting leave for the financial proceedings to be conducted as child related proceedings, under Division 12A of Part VII of the Act.
13The parties agreed neither parent would be cross-examined, because of the father's health. Dr E, Ms C, and Ms D were not required for cross-examination. I accept their unchallenged evidence.[4]
[4] Noting that a number of paragraphs of Dr E’s affidavit were agreed to be struck out.
14Ms C and Ms D are friends with the paternal grandmother, and attend the same church. They have each offered to supervise the father's time with the children. Ms C has not met the father or the children. She is a school officer. Ms D has met the father, but does not know him or the children. She is a retired social worker. Neither Ms C nor Ms D have received details about the father's health, the reports of Dr F, or information concerning the risk issues in the case.
15The paternal grandmother, Mr A, Ms B and Dr F attended the trial and were cross-examined. At my direction, Dr F gave her evidence and was cross-examined first. I gave the parties permission to recall Dr F, after hearing from the other witnesses. None of them elected to do so.
16I have considered all of the evidence very carefully. In these Reasons I have not referred to all of the evidence as I do not consider it necessary, nor is it practicable to do so. If I do not refer to part of the evidence of a party or witness, it should not be assumed I have ignored or overlooked it.
The paternal grandmother
17The paternal grandmother has hearing difficulties. With the consent of all counsel, a clerk from Legal Aid sat in the witness box next to the paternal grandmother, and effectively acted as a human hearing aid. [The clerk] fulfilled that role, which greatly assisted the paternal grandmother, the Court, and the parties.
18The paternal grandmother gave evidence in a candid and frank manner. She is clearly a source of practical, physical, and emotional support for the father. She holds an Enduring Power of Attorney for the father and assists him to manage his financial affairs. She is anxious about the outcome of the proceedings, and in particular, the prospect that the home she shares with the father, could be sold.
19I consider the paternal grandmother gave her evidence honestly and as she saw it. She is strongly supportive of the father. When it was put to her that Child B had refused to spend time with the father, following seeing him naked, she said she would not tell the father because that would upset him.
20The paternal grandmother loves the children. She is a devoted grandmother. However, I formed the view her primary alignment was to the father. Having heard her evidence, I had concerns about her level of insight into the impact the father's conduct had on the children, and her capacity to prioritise the needs of the children, above those of the father.
Mr A and Ms B
21I consider Mr A gave his evidence in a direct and forthright fashion, as did his wife. Mr A and Ms B are friends of the paternal grandmother and attend the same church. They are friendly with the father. They are both employed, on a rotating roster. Since 2019, Mr A has been spending more time with the father, assisting him to fix up his car. Ms B, at the time of trial, had not read all the material which had been provided to her. Mr A and Ms B are supportive of the father and his application to spend time with the children. They have met Child D and Child C, during a supervised visit in October 2020. They impressed me as being honest witnesses.
22Having heard their evidence, I gained the impression neither Mr A nor Ms B fully appreciated the risk issues in the circumstances, and why the father's time was required to be supervised.
Dr F
23Dr F was appointed as the Single Expert Witness [in] 2017. She is a registered clinical psychologist and has a Bachelor of Psychology, a Master of Applied Psychology, and a Doctor of Philosophy. She has worked as a psychologist since 1995.
24Dr F has prepared three reports dated 30 December 2017, 16 April 2020, and 16 January 2021. She also gave oral evidence and was cross-examined by each of the parties. Dr F gave her evidence in a thoughtful, professional, and helpful manner, to which I will refer in more detail later.
BACKGROUND FACTS
The parties
25The father is 49 years of age and is a disability support pensioner. In early 2016, the father was diagnosed with a severe neurodegenerative disease. According to the father's treating neurologist, [Dr G], the father has a reduced life expectancy.[5]
[5] Exhibit 3, email from Dr G dated 18 August 2020.
26The paternal grandmother lives with the father at his home, at [Property A] and provides him with full-time care. The father purchased Property A utilising his total and permanent disability insurance ("TPD") payment in 2016. Property A has six bedrooms, a swimming pool, and has been modified to accommodate his needs.
27In […] 2020, the State Administrative Tribunal declared the father incapable of looking after his own health and safety, unable to make reasonable judgements in respect of matters relating to himself, in need of oversight, care, or control in the interests of his own health and safety, and in need of a guardian.[6] The public advocate has since been appointed as the father's case guardian.
[6] Exhibit 2, SAT order [in] 2020.
28The father is in poor health. He suffers from [slurred speech], [impaired walking and balance], and reduced left upper limb dexterity. He experiences fatigue. The father has sphincter dysfunction and can be constipated or have faecal and urinary urgency. He struggles to regulate his temperature, and is intolerant to heat, which exacerbates his symptoms.[7] Stress adversely impacts on his disease and is thought to precipitate relapses.
[7] Exhibit 2, letter from Dr G, at [Hospital A] dated 7 August 2020 and 1 July 2020.
29The father has a manual wheelchair and walker, but is able to move about his home, assisted by furniture. He requires wheelchair accessible accommodation and modifications for his safety, such as shower rails. The father is reluctant to leave his home. Dr G's comments to Dr F suggested that was a choice made by the father,[8] while the paternal grandmother's evidence was the father was unable to do so. The fact the father continues to drive, albeit on a limited basis, suggests he can leave his home, when he feels well enough, and wishes to do so. Since around March 2020, due to COVID-19 restrictions, the father's treating practitioners have attended his home, or appointments have been arranged by electronic means.
[8] Transcript, Thursday 21 January 2021, page 42.
30The mother is 44 years of age. She is a full-time homemaker and parent. The mother lives in rental accommodation. Child A and Child C have their own bedrooms. Child B and Child D share a bedroom. The mother sleeps in the lounge room. She is reliant on government benefits and is in strained financial circumstances. She lives week to week and has struggled to support herself and the children. The father owes the mother over $9,500 in child support.
Circumstances since separation
31Following the parties' physical separation in [mid-2014], the children lived with the mother and spent time with the father. In December 2014, the mother and children returned to live with the father.
32In January 2015, the mother alleges she saw the father standing over Child C, with his fly open. The mother yelled at the father and asked what was going on. She says he simply walked away. On another occasion, the mother says she found the father in bed with Child C, naked and masturbating. She immediately removed Child C. The father denies behaving in an inappropriate manner towards Child C.
33The mother says the father insisted on co-sleeping with the children, despite her objections. In January 2015, the mother claims Child B hit Child C in the face. The father then punched Child B in the face, causing him to fall off a couch. She was afraid to say anything and sought to comfort the children. The father says he gave Child B a three-fingered slap to the back of the head and accepts he should have dealt with the situation differently.[9]
[9] Father’s trial affidavit, filed 1 March 2019, paragraph 156.
34As a result of these incidents, in [early] 2015 the mother and children moved out of the father's home. The father regularly attended the mother's home, argued in the presence of the children, and when the mother asked him for assistance, he agreed, on the condition she have sex with him. The mother says she complied because she was scared of the father and in desperate financial circumstances. She alleges the father also sexually assaulted her, on numerous occasions.
35From around April 2015, the children began spending alternate weekends with the father. In November 2015, following the father's diagnosis, he was unable to continue those arrangements and the visits stopped.
36In January 2016, the mother moved into a friend's home when she was unable to obtain rental accommodation. She alleges the father then regularly contacted her, asking to have sex, and seeking to reconcile. In February 2016, the father collected Child A and took him to school. He was not then spending time with the other children.
37The mother says the father then began regularly attending the children's school and attempting to remove them. He agreed to take Child B and Child A to school, only if the mother had sex with him. On occasions he gave her $50. She says the father frequently attended her home, uninvited, banging on the door and windows.[10] The father concedes [in mid-2016], he went to the mother's home to deliver presents for the children. He says the mother told him to "fuck off" and slammed the door in his face.[11] The mother says because of the father's conduct, Child A and Child B were anxious attending school. That negatively impacted on both boys' school attendance and impacted on their well‑being.[12] In June 2016, the school arranged for Child A and Child B to access counselling and linked them into support services.
[10] Mother’s trial affidavit filed 17 April 2019, paragraphs 46, 48, 51 and 56.
[11] Father’s trial affidavit filed 1 March 2019, paragraph 47.
[12] Mother’s trial affidavit filed 17 April 2019, paragraphs 47 and 57.
38[In] June 2016, the mother obtained an interim VRO for her protection against the father. The police were unable to locate the father to serve the VRO. [10 days later], the mother alleges the father came to her home, banging on windows and doors and demanding to see the children. The mother rang the police, who then served the father with the VRO. While the father objected to the VRO, it was ultimately made on a final basis, in January 2017.
39The father has been charged with breach of the VRO in 2018. In February 2020, the mother was granted a further VRO for her protection against the father, which has since been made final.
40In July 2016, the paternal grandmother applied for a Misconduct Restraining Order against the mother, which was resolved by way of an undertaking for a period of two years.
41Between May and September 2016, the children did not spend time with the father.
42[In] July 2016, the father initiated proceedings, seeking the children live with him, complaining the children did not have beds at the mother's home. The mother acknowledged the children were sleeping on mattresses on the floor, because the father refused to allow her to take the children's beds, and other belongings.[13]
Notice of Risk
[13] Mother’s trial affidavit filed 17 April 2019, paragraph 58(a).
43[In] November 2016, the mother filed a Notice of Risk, which included some 25 allegations. The mother deposed the father had perpetrated verbal, physical and sexual abuse towards her. She alleged the father had behaved in a sexually inappropriate manner towards Child C, in terms detailed above. She asserted the father and his family had behaved in a violent and derogatory manner towards her, including:
•In November 2010,[14] while the family were living in [State A], the father's brother, [Mr H], called Child A "a little cunt" and hit Child B on the arm and then made the mother and the children sleep in a shed. A further incident in October 2012,[15] where Mr H "yelled and moved to hit the [mother]", and the father did not intervene;[16]
•In April 2012, the father and the paternal grandmother argued within the hearing of the children, causing them distress;[17]
•Between November 2011 and January 2015, the children witnessed many arguments between the parties, escalated by the father;[18]
•In January 2015, the father punched Child B in the face;[19]
•In 2015, the father picked up Child B from a birthday party without telling the mother and slammed a door in the mother's face. The father retained Child B, which caused him distress;[20]
•Between November 2015 and May 2016, the father would only assist the mother if she agreed to have sex with him;[21] and
•On multiple occasions in 2016, the father came to the mother's residence and banged on windows and doors, demanding to see the children.[22]
[14] The Notice of Risk recorded this incident as occurring in November 2011; however, the mother corrected the date in her trial affidavit filed 17 April 2019, paragraph 11(a).
[15] The Notice of Risk recorded this incident as occurring in October 2014; however, the mother corrected the date in her trial affidavit filed 17 April 2019, paragraph 11(a).
[16] Notice of Risk filed 29 November 2016, paragraphs 1 and 7.
[17] Notice of Risk filed 29 November 2016, paragraph 3.
[18] Notice of Risk filed 29 November 2016, paragraphs 2, 4–6, 8–10, 13.
[19] Notice of Risk filed 29 November 2016, paragraph 14.
[20] Notice of Risk filed 29 November 2016, paragraph 18.
[21] Notice of Risk filed 29 November 2016, paragraph 20.
[22] Notice of Risk filed 29 November 2016, paragraphs 22–23.
44The father denied the allegations. He claimed the children were at risk in the mother's care, due to her mental health, illicit drug use and her inability to parent the children. The mother denied the father's allegations.
45The Department of Communities determined no action was required.[23] They confirmed in 2016 they had received three reports of domestic violence, which alleged the father was stalking and harassing the mother, and breaching the VRO. In July 2016, concerns were raised about the impact of domestic violence on the mother's ability to care for the children. The Department interviewed Child C, who made no disclosures in terms of sexual abuse.
[23] Department of Child Protection and Family Support Memorandum, dated 13 January 2017.
46In 2016, concerns were raised with the Department about the children being left alone when in the mother's care. They attended the mother's home and after speaking with her, assessed no further action was warranted.
Supervised Visits with Supervision Service B
47Following interim orders made in September 2016, the children spent time with the father supervised by [Supervision Service B]. At the same time, orders were made restraining the father from attending the children's school. It is common ground that despite those orders, the father has done so. For example, in October 2019, the father approached Child B, Child C and Child D while they were walking home from school. In December 2019, the father contacted Child B's school, asking to spend time alone with him, which the principal refused. The paternal grandmother has repeatedly asked the school principal to allow the children to spend time with the father, which he has declined, in view of the orders.
48Supervision Service B supervised eight visits between the father and the children between October 2016 and January 2017. They produced a report which concluded "the father was observed mostly to have engaged well with the children during the visits" and recommended unsupervised visits.
Case Assessment Conference
49[In] January 2017, the parties attended a Case Assessment Conference. The father said the supervised visits went well, but occurred at the worst time of the day for him. The mother indicated the father had chosen the time and she was willing to be flexible, given his health. The father reported the mother would smack the children and had, on one occasion, attempted to strangle Child A. The mother reported the father was controlling, had sexually assaulted her on two occasions and referred to the allegations in her Notice of Risk regarding Child C, adding that on one occasion she discovered the father "with his pants down and Child C between his legs" and Child C had said to the mother "[o]nly Daddy can change my nappy, only Daddy can touch me down there". Both parties admitted to illicit drug use, and otherwise denied the claims of the other.
50The Consultant described the parties as presenting polarised, contradictory accounts of events, and suggested the father's time with the children should be supervised by the paternal grandmother.
Children's time with the Father
51The parties agreed, between January and December 2017, for the children to spend time with the father, at either a play centre or his home. The mother complains about a number of incidents in that period, which I will turn to later in these Reasons.
52In June 2018, the parties re-engaged Supervision Service B and supervised visits resumed. The father provided Child A and Child B with mobile telephones, telling them not to show the mother. Supervision Service B terminated provision of their services in July 2018, due to difficulties with the father and paternal grandmother.
53In April 2019, orders were made by consent for the father to spend time with the children supervised by members of the paternal grandmother's church, subject to the approval of the ICL. The ICL did not approve the potential supervisors, after having met them, for various reasons.
54In May 2019, further orders were made for the children to spend supervised time with the father, at his home, on a fortnightly basis. The father's health declined and as a result, the visits were reduced to once a month. The parties also agreed to stop telephone contact, due to difficulties with the children understanding the father.
55In August 2019, Child A stopped spending time with the father, and Child B was then reluctant to attend. In September 2019, the father told the children he would not be able to see them until November.
The father's health and life expectancy
56I have already referred to the father's diagnosis […] and current state of health.
57Dr E is a clinical and forensic psychologist. At the request of the father's solicitors, Dr E prepared a report about the father's capacity to provide instructions and understand legal advice. Dr E met with the father in October 2019 and summarised the material he received. Dr E confirmed the father had trouble speaking because of neurological impairments, and he struggled with fatigue and thermal regulation. When the father suffered fatigue, his cognitive capacities declined. Dr E described the father's situation as extremely unfortunate, with the father presenting as despondent and hopeless about his circumstances.
58Dr G has confirmed the father has a reduced life expectancy.[24] She has provided information which summarised studies about the impact of [the neurodegenerative disease] on life expectancy, and confirms the disease is highly variable. [It] is a lifelong condition. People with [this neurodegenerative disease] generally live seven years less than someone without the disease, however, due to advancements in treatment, the progression of symptoms can be slow. The course of the disease is also affected by risk factors and lifestyle.
[24] Exhibit 3, email from Dr G dated 18 August 2020.
59The paternal grandmother deposed when the father was first diagnosed in February 2016, he was told he would likely live for between seven to 10 years, being 2023 to 2026. Regrettably, no evidence was led from the father's treating medical practitioners, about the father's prognosis or life expectancy.
60The evidence suggests the father has not been proactive in managing his health. The father does not undertake regular health checks and was assessed as isolated and severely neglecting his self‑care.[25] [Ms I], a registered nurse, […] has been assisting the father since May 2017. In her report to the State Administrative Tribunal (undated), she wrote:
[The father’s] health and safety is at risk in my opinion. There are numerous factors contributing to this risk. We […] know what can help best manage [the] disease and reduce the risks of […] progression. [The father] currently is engaging in NO life or health choices that can help him stay well and independent. He smokes he has no exercise, his diet is very poor with no intake of any fruit or vegetables (just in the last two weeks he commenced taking vitamin C tablets), he is low weight, weak and falls risk (fell recently sustaining an injury to his left foot), he has no social engagement, he spends most of his time in his dark cool bedroom getting no sunshine or fresh air and he has poor sleep patterns not being aware of day/night as his room is so dark with blacked out windows - he dozes and sleeps on and off. He is not addressing the management or treatment of [his neurodegenerative disease] or any symptoms he experiences from [the neurodegenerative disease] or other health conditions currently. [The father] is at risk of […] decline/progression, accumulation of disability and other health conditions, both mental and physical, could also result from his current poor health and lifestyle choices.[26]
[25] Exhibit 2, Support Service B report updated 29 August 2017.
[26] Exhibit 2, undated SAT Service Provider Form.
61The paternal grandmother gave evidence that based on her observations, the father's health is deteriorating. She says his voice is "almost non-existent", requiring him to shout to be heard. She described the father as suffering difficulties with his cognition, causing him to become frustrated and upset. He struggles towards the end of the two-hour visits with the children because he tires easily and finds it hard to cope with the noise. The father spends most of his time in bed, in his darkened bedroom, with the air-conditioner on high, throughout the year. He avoids going outside, other than at night. He is intolerant to light and heat. The father has trouble with his vision. She said the father is unable to walk properly and is incontinent, requiring him to be close to a toilet at all times. The paternal grandmother said it was her job to "try and alleviate stress, so [the father] does not deteriorate too quickly".
62The father has opted to discontinue medications. He has declined to attend medical appointments in person. He has refused a referral to a continence nurse.[27] He has declined ongoing occupational therapy services, including for fatigue management.[28] He has declined physiotherapy, speech therapy, counselling, and dietitian and neurological services, despite the recommendations of his treating practitioners.[29] He has not followed medical advice and recommended treatment, nor lifestyle adjustments, to manage his disease. It is predicted the father's health will decline, and the disease will progress.[30]
Difficulties with the children's visits with the father
[27] Exhibit 2, letter from Dr G, at Hospital A dated 1 July 2020.
[28] Exhibit 2, email from [an] occupational therapist dated 13 March 2018.
[29] Exhibit 2, Support Service B report updated 29 August 2017.
[30] Exhibit 2, letter from Hospital A dated 7 August 2020.
63Throughout the course of the proceedings, there have been numerous difficulties associated with the children's time with the father. I have set out below a summary of some, but not all, of those issues.
64[In early] 2017, during a supervised visit at a play centre, the father made Child A pull down his pants, so the father could examine Child A's eczema. The mother says Child A was devastated. The father acknowledges this occurred, but says he was "being a responsible parent". The supervision service did not agree with the father's description.[31]
[31] Father’s trial affidavit filed 1 March 2019, paragraph 68.
65[In] January 2017, orders were made restraining the father from assisting Child C with her toileting, changing her nappy, or attending to her personal hygiene,[32] and on a without admission basis, the father was restrained from inspecting any part of the bodies of the children. [In] February 2017, the mother says the paternal grandmother did not change Child C’s nappy as advised, but made Child C go to the toilet, which resulted in Child C then becoming scared of going to the toilet.[33]
[32] Location and day amended by consent orders [in] March 2017 and further orders were made by consent [in] May 2017 that the children could spend additional time with the father, as agreed.
[33] Mother’s trial affidavit filed 17 April 2019, paragraph 65.
66[In] February 2017, during the visit, the father messaged the mother asking if he could change Child C's nappy, supervised by the paternal grandmother. The mother refused, to which the father replied, "all good mums (sic) tummy was playing up". The father's solicitors later confirmed the paternal grandmother was not present during the visit.[34]
[34] Mother’s trial affidavit filed 17 April 2019, paragraph 66.
67[Later in] February 2017, the children told the mother the father had become angry with Child B during the visit, physically held Child B and said, "I am strong and you are weak".[35] The father says Child B was being bullied by another child, and he was simply comforting Child B.[36] It is difficult to see how those comments were comforting.
[35] Mother’s trial affidavit filed 17 April 2019, paragraph 67.
[36] Father’s trial affidavit filed 1 March 2019, paragraph 80.
68[In] March 2017, the father took Child C into the toilets at the play centre and changed her clothes, without the assistance of the paternal grandmother.[37] The father then returned Child C to her previous clothes, before she was returned to the mother. The father told Dr F there was nothing sinister in his actions, which were also consistent with his conduct in giving the children gifts which they were not permitted to take to the mother's home. Dr F described the father's conduct as an example of the children being drawn into the parental dispute, which would negatively impact upon them.
[37] Mother’s trial affidavit filed 17 April 2019, paragraph 69.
69[Later in] March 2017, further orders were made, requiring the paternal grandmother to be present during the father's time with the children. The mother considered the orders required the paternal grandmother to supervise the visits, while the father says the paternal grandmother was simply there to assist him, if required.[38]
[38] Mother’s trial affidavit filed 17 April 2019, paragraph 71 and the father’s trial affidavit filed 1 March 2019, paragraph 72.
70[In] April 2017, the paternal grandmother took Child C to the toilets and changed her nappy while the father watched, leaving the other children unsupervised. [In] August 2017, the father changed Child C's nappy, while the paternal grandmother watched,[39] contrary to the orders.
[39] Mother’s trial affidavit filed 17 April 2019, paragraph 82.
71Between April and December 2017, the children's time with the father then took place at the father's home, by agreement.[40] In July 2017, the father emailed the mother saying he was taking a step back, and then did not see the children for the following three weeks.
[40] Father’s trial affidavit filed 1 March 2019, paragraph 83.
72In August 2017, the mother requested the father agree to a third‑party conducting handovers, to avoid contact with the father. He refused.
73[In] September 2017, the father photographed the children with the paternal uncle's dog. Child A returned home with a severe allergic reaction. The mother says Child A then refused to attend visits. The father says he ensured the dog was not around Child A again.[41]
[41] Father’s trial affidavit filed 1 March 2019, paragraph 98.
74In late 2017, the mother says on multiple occasions the father took Child B to sleep at his house, without her consent, on one occasion receiving the message through Child A.[42] The father says he should have confirmed the arrangements with the mother, rather than sending a message through Child A.[43]
[42] Mother’s trial affidavit filed 17 April 2019, paragraphs 86 and 89.
[43] Father’s trial affidavit filed 1 March 2019, paragraph 100.
75In September 2017, the father told the mother he was collecting Child B after school to stay the night at his house. The mother did not agree. The father attended the mother's home, took Child B, and then left, despite the mother's objection.
76In October 2017, the father advised the mother he would be changing the time of the visits. That same month, he failed to return Child B following a visit.
77[In] November 2017, the children (except for Child A), spent the evening at the father's home. The father returned Child D at 7pm, at his request, and later returned Child B. Child C remained with the father overnight, without her nappy being changed. The father said the paternal grandmother was not present, and because of the court orders, he was unable to change Child C's nappy. The father said "[i]f Child C was changed it was a problem, if Child C was not changed it was a problem".[44]
[44] Father’s trial affidavit filed 1 March 2019, paragraph 149.
78On 11 November 2017, the mother says the father picked up and dropped off the children, wearing only his underwear.[45] The mother asked the father to ensure he was dressed in the children's presence, and not share a bed with the children. The father replied that Child C could sleep in his bed, if she wished.
[45] Mother’s trial affidavit filed 17 April 2019, paragraph 91.
79[Later in] November 2017, the mother says Child C disclosed the father "touches and rubs her all the time and she doesn't like him doing it. I asked her to show me if she could where and she pointed to her stomach, back, arms, legs and shoulders". She claimed Child C disclosed the father bathed her and continued to sleep in the same bed with her. Child C said when she went into the shed with the father, he drank, and smoked, and made her wear a blue dress. Child C said she did not want to stay overnight at the father’s home anymore. The mother reported Child C's disclosures to the police. No action was taken.[46]
[46] Mother’s trial affidavit filed 17 April 2019, paragraph 92.
80[In] December 2017, the children brought from the father's home an R-rated Xbox game,[47] which the mother confiscated.
[47] Mother’s trial affidavit filed 17 April 2019, paragraph 94.
81In January 2018, the paternal grandmother advised further visits at the play centre would not occur. It appears visits ceased for a few months.[48]
[48] Mother’s trial affidavit filed 17 April 2019, paragraphs 100–110.
82[In] May 2018, orders were made by consent restraining the father from taking Child C into the garden shed, requesting Child C change clothes in his sole presence, requesting any of the children change their clothes in public, and providing the children with DVD material without the mother's consent.
83The mother says the children's visits with the father continued to be problematic, including the father failing to feed the children, the paternal grandmother not being present, the father grabbing and squeezing Child B's ear, smacking Child A over the head, and not providing Child A with his medication. The father says he accidentally stepped on Child A's medicine, and on another occasion, Child A did not have his medication with him. Otherwise, the father says he provided Child A his medication, as required.[49]
[49] Father’s trial affidavit filed 1 March 2019, paragraph 157.
84The arrangements for unsupervised visits between the father and the children broke down. In June 2018, the parties agreed to re-engage Supervision Service B.[50] In July 2018, Supervision Service B withdrew their services, following an incident where the paternal grandmother took two of the children during a supervised visit. The paternal grandmother drove the children to shops, without the supervisor's knowledge. Supervision Service B also raised concerns about communicating with the father and the paternal grandmother.[51]
[50] Transcript of the hearing of 14 August 2018, page 3.
[51] Transcript of the hearing of 14 August 2018, pages 3–4.
85[In] May 2019, interim orders were made for the children to spend supervised time with the father each alternate Saturday, on special occasions and have electronic communication on Tuesdays and each intervening Saturday, monitored by the mother. Further orders were made to allow the father to attend school assemblies and the father was injuncted on a without admission basis from consuming alcohol while the children were in his care. The visits were altered by agreement to occur monthly, as the father said he could not afford the fortnightly frequency.[52]
[52] Mother’s affidavit field 11 August 2020, paragraph 6.
86Between […] May 2019 and […] July 2020, nine visits were scheduled between the father and the children. Only Child C and Child D attended all nine visits. Child B attended seven visits, while Child A attended only three.
87The mother says despite the visits being supervised, there were ongoing problems, including the father:[53]
[53] Mother’s affidavit field 11 August 2020, paragraph 25.
•Allowing Child B to swim in only his underwear;
•Asking Child C to swim in only her underwear;
•Arguing and yelling at the paternal grandmother in the presence of the children, which they found upsetting;
•Not being clothed, when the children arrived for visits;
•Giving the children money, which they were not allowed to take home. On other occasions, giving the children different amounts of money, which caused conflict between the children;
•Telling the children they can spend unsupervised time with him;
•Asking Child C to get into bed with him;
•Allowing Child D to play on the trampoline, despite knowing he is not allowed to do so, due to his medical condition; and
•Waiting outside the children's school to speak with the children, despite orders for supervised contact only.
88[In] May 2020, orders were made by consent for the father to spend supervised time with the children via FaceTime, in the event supervised visits were not occurring due to issues related to COVID-19. The orders provided for the father to arrange to return the children's toys to the mother's residence.
89[In] August 2020, the parties attended a Pre-Trial Conference. All previous parenting orders were discharged, and orders were made by consent largely resolving the parenting dispute, to which I have already referred. The consent orders provided for the children to spend time with the father, supervised by Supervision Service A or such other supervisor or agency as agreed between the parties.
90Supervision Service A prepared four reports for the visits [in] June, July, September, and October 2020. The reports were only produced shortly prior to the trial and became exhibit 1. Each report raised concerns about the father's conduct. The salient aspects of the reports are as follows.
91June 2020 with all four children:
•Child B and Child A did not want to attend;
•The paternal grandmother asked the supervisor not to write anything down because it would agitate the father, and not allow him to feel relaxed when interacting with the children;
•The supervisor described the father's home as smelling heavily of cigarette smoke, causing the supervisor to develop a headache;
•The father was described as "very demanding of the children, telling each of them when they could talk and what they could do and touch". When the children were talking amongst themselves, the father interrupted loudly, and said "stop it, you are all here to talk to me not to talk to each other". The children reportedly fell silent;
•The father told the paternal grandmother to leave the room as the children were there to see him, and yelled at her later in the visit. When the paternal grandmother attempted to take photos of the father interacting with the children the father yelled "stop pointing that camera in my face!" The grandmother told the father not to be so mean, to which the father replied, "I am the one who is sick here not you". The grandmother told the father he was not sick, but rather lives with a disability and needed to stop using it as an excuse. She then raised her fists in a boxing pose and said to the father "if you keep going, I will box you around the years, I have had enough". When the paternal grandmother left the room, she raised her fist in the supervisor's face and said she would hit the father later if he continued;
•The supervisor described all of the children appearing nervous when they spoke, and looked intensely at the father, unsure of his reaction;
•The father bought himself a gift and pretended the children had purchased it for him. He then announced to the children the gift was wrong and he would need to return it;
•The father gave the children money and dictated which notes the children were allowed to take home;
•The father told the supervisor to go outside and "explore", which the supervisor refused to do;
•The father told the children "you guys are killing me. You are supposed to be making my life easier not harder"; and
•The father retreated to his bathroom to smoke a cigarette, while the children said goodbye to the grandmother.
92July 2020 with Child C and Child D:
•Child C appeared anxious and uncomfortable at times, for instance when sitting on the father's bed. She asked quietly and cautiously if she could go outside and said she did not feel comfortable going into the shed. Child C asked on a few occasions whether it was time to go home; and
•The paternal grandmother suggested Child C should go into her father's bedroom. Child C was reluctant to do so.
93September 2020 with Child C and Child D:
•Child B and Child A did not want to attend;
•Child C expressed she would not feel comfortable visiting her father without a supervisor. Child C was scared when the father yelled at the paternal grandmother. She wanted to stay outside on the trampoline for most of the visit; and
•Child C was not comfortable sitting in the father's bedroom.
94October 2020 with Child C and Child D:
•Child B and Child A did not want to attend;
•During the visit, the father needed to have a rest. The supervisor considered the children were confused about their father's illness;
•The father was apprehensive to allow the children to take their toys home, saying they would not have anything to play with at his house. He said one of the toys was very expensive and he did not want them to take it. Eventually he agreed to allow the children to take the toys home;
•The father said to Child C "so you're still wearing nappies?" Child C did not respond and looked upset. The paternal grandmother hugged Child C and told the father not to make those remarks in public; and
•The father seemed disgruntled and mentioned his fear of losing his house, that he was supposed to see the children every fortnight although he rarely sees them.
95Dr F described the recent supervision reports as chaotic, with ongoing issues of concern. Dr F was unable to speak with the individual supervisors, who had left the agency. She spoke with the supervision manager, who confirmed each of the supervisors reported they felt uncomfortable at the father's request they sit in his bedroom, his conduct in general, and the way the father spoke to the paternal grandmother.
96Child A currently spends no time with the father. Child B has not attended the last three supervised visits. The last visit Child B attended, he opened his father's bedroom door and saw the father naked.
Single Expert Witness
97In Dr F's first report, she noted the key issues between the parties included:
(a)The mother's allegations that:
a.The father was controlling with money, and would not provide for essentials, electing instead to buy the children gifts which they were not permitted to take to her home;
b.The father displayed poor boundaries, and she held concerns about the safety of Child C given the allegations the father had behaved in a sexually inappropriate manner towards her;
(b)The father's allegations that:
a.The mother suffered from postnatal depression which had not been treated; and
b.The mother had physically disciplined the children through smacking.
98Notwithstanding the serious allegations, Dr F reported the parents had seemingly reconciled and, at times, resumed a sexual relationship.
99Dr F considered each of the children had been impacted and exposed to conflict between their parents, including family violence. She found the children to have a strong attachment and bond with the mother, and they were meeting their developmental milestones. Dr F assessed the children as having a good relationship with the father, noting they each expressed a desire to continue to live with the mother.
100Contrary to the father's claims, Dr F did not consider there was evidence the mother had attempted to alienate the children from the father. She described the father as overly critical of the mother, and aware of his financial advantage, which he used to achieve his own objectives, corroborated by his text messages in which the father agreed to provide food to the mother, in exchange for intimacy.
101Dr F confirmed the mother had been diagnosed with depression and was taking medication as prescribed. She considered the mother's health likely impacted on her coping capacity and parenting ability, which was also compounded by the mother's financial difficulties. She noted the concerns about the children's school attendance,[54] lack of food, the state of the mother's home, and the children's hygiene and health. The mother referred to the father's lack of financial assistance, and the difficulties she had trying to feed the children and meet their needs. Dr F stated reducing the stressors for the mother would assist her parenting capacity.
[54] For example, in 2016, Child B’s school attendance was 43%.
102Dr F noted the father appeared to be unable to cope with spending extended time with the children due to his health and that professional supervision was required. She did not consider the paternal grandmother to be a reliable reporter, describing her as demonstrating little insight and holding a negative view of the mother.
103The paternal grandmother told Dr F she and the father were happy to provide money to the school for the children's needs, but were reluctant to provide money directly to the mother. Dr F recommended professional assistance and counselling for both parents and the children.
104In Dr F's second report, she again met with each parent and the paternal grandmother, as well as the children. She also spoke with Dr G, the principal of [Primary School A], and Child B's counsellor.
105Dr F attended the father's home, at his request. The father repeatedly asked Dr F to sit in his darkened bedroom, which she declined. Dr F sat in the doorway to the father's bedroom, with the paternal grandmother present, and the father was in bed. The father was not dressed.
106She described the mother as having made significant and positive improvements in terms of her health and parenting. The school principal reported similar improvements in terms of the mother's parenting, and the children's school attendance and behaviour. [Support Service A] had then provided some assistance to the mother. Dr F considered the mother's depressive symptoms had resolved, and she was more assertive, displaying increased self-esteem and parenting in a much more effective, assertive manner.
107Dr F found each of the children had made and maintained positive gains since her previous report, which was a testament to the mother's efforts, and a reflection of the decreased exposure to parental conflict. In her view, the children's lack of consistent contact with the father, contributed towards them presenting as calmer and more settled.
108The father continued to criticise the mother, accusing her of using the children as weapons, and preventing the children from spending time with him.
109Dr F asked the father why he continued to send sexual text messages to the mother, despite her asking him to stop. The father said, "[y]es I could stop, I miss her in a romantic way, living with it since 2014".[55]
[55] Paragraph 45 of the report of Dr F attached to her affidavit filed 23 April 2020.
110The mother described remaining fearful of the father, and upset by his behaviour and lack of boundaries. She reported feeling uncomfortable, upset, and bullied by both the father and his girlfriend, who had messaged her and referred to reports in the proceedings. The mother said she continued to feel manipulated by the father, financially and through using his health, to achieve accommodations. The mother emphasised her desire to achieve some certainty for her financial future, to enable her to focus on caring for the children.
111The school principal told Dr F he had reiterated to the paternal grandmother that the court orders did not permit the father to collect the children from school, despite her ongoing requests that he do so. The mother reported she felt continually undermined by the father and paternal grandmother. The paternal grandmother told Dr F that the father occasionally bullied her, and she simply went along with what he wanted.
112Dr F noted the ongoing concerns raised by the children about the father's inappropriate behaviour, including the incident when the children arrived and found the father naked. Child B and Child A told Dr F they wanted to decide what contact they had with the father. The younger children were ambivalent about seeing the father. Each child expressed negative opinions about the father because he withheld finances. The father told Dr F he did not want to give the mother any of his money.
113The children each reported feeling uncomfortable in the father's home, including his insistence on them going into his bedroom and his interactions with them.
114Dr F described the father's behaviour as financially controlling and refusing to accept and respect the mother's boundaries. The father also demonstrated a lack of insight into the impact on the children, of his decision to provide limited financial support to the mother, and the arrears he then owed by way of child support.
115Dr F recommended ongoing professional supervised visits, outside of his bedroom, at times when the father was feeling well. She noted the importance of the mother having access to finances, to ensure she could meet the day-to-day needs of the children. She recommended the father's health be assessed and he engage with a psychologist, to improve his parenting capacity.
116She concluded her report writing:
130.This is a complex matter. There are also many issues to consider such as the father's health, the paternal grandmother's reliance upon the father for accommodation, the mother and the children's poor financial situation, the children's confusions and sadness resulting from their father not allowing them to keep the gifts he has provided (as they are now of an age where they have identified that this is taking place), along with the parental conflictual dynamic and the father's inability to let go of (and by his own admission) his romantic relationship with the mother.
131.In my opinion, the mother has made positive gains with both herself and her care of the children. The home visit was evidence of just how well the mother was coping in relation to how she had previously been coping. I did assess that the mother was becoming increasingly frustrated with the father and his lack of boundaries with her that led to a Family Violence Restraining Order. From the information available to me, in my opinion the father has continued to ignore the mother's request for no contact … [and] the mother was … becoming increasingly stressed at the father's lack of boundaries.
117In Dr F's third report, she set out the additional documents she had received,[56] including the supervision reports and the affidavits of the father's proposed supervisors. She did not interview the parties or the children.
[56] Page 4–5 of the report of Dr F attached to her affidavit received 20 January 2021.
118Dr F maintained her recommendation that future visits be professionally supervised, given the ongoing concerns about the father's behaviour and the discomfort experienced by the children. She noted the father continued to ask Child C to spend time in his bedroom, despite her wishing not to do so. When the father asked the paternal grandmother to direct Child C to go into his bedroom, she complied, which Dr F described as not child-focused, and indicative she continued to be influenced by the father. Dr F noted the father's comments about Child C wearing nappies, which upset Child C and caused her distress, and confirmed the need for ongoing monitoring for the sake of the children.
119Dr F deposed that "when the children are exposed aspects (sic) of their father's illness that they don't understand this might negatively impact on the children and having a supervisor there to help them in this regard is imperative. In my opinion, it's important to not overburden the younger children or expose them to negative aspects of the father's illness".[57] She considered professional supervision could ensure the children were protected in the event of any sudden deterioration in the father's health.
[57] Paragraph 12, page 6 of the report of Dr F attached to her affidavit received 20 January 2021.
120At trial, Dr F had access to the exhibits. She could not comment on the father's proposed supervisors, having not interviewed or assessed them.
121Dr F was asked about the father's bedroom, which she described as "small", "pitch black" and "[d]ark – so dark that a hallway light sheds only some light into the room".[58] Dr F gave evidence she felt uncomfortable being asked to enter the father's bedroom and considered it was not an appropriate location for visits, given the risk issues. She noted the communal areas in the father's home were large, comfortable, and better suited to visits between the children and the father.
[58] Transcript, Thursday 21 January 2021, page 15.
122Dr F confirmed the paternal grandmother appeared to normalise and accept the father's behaviour. While she acknowledged the paternal grandmother was hard of hearing, and the father had difficulty speaking, Dr F maintained her concern, based on her own observations, that their communications, including shouting and arguing with one another, was likely to upset the children, consistent with the views of the supervisors.
123Dr F concluded the reports demonstrated the children remained uncomfortable in the father's care, the father and the paternal grandmother continued to argue and shout in the children's presence, causing them distress, the father's ongoing refusal to follow directions made by the supervisors, and his insistence on the children spending time in his darkened bedroom, despite their reluctance. She concluded the father displayed an ongoing lack of insight into the children's needs, a lack of respect of boundaries, and raised concerns about whether there had been some tolerance of poor behaviour because of the father's health. In her view, the reports described interactions which were not positive experiences for the children. I agree.
124She maintained her recommendation for professional supervision, with visits to ideally occur in a predictable manner and at times when the father could be at his best, to ensure the visits were enjoyable and beneficial for the children. She considered the provision of reports was important, to ensure the mother was aware of what occurred, to assist her in managing the children's needs, and to reduce her anxiety about the visits.
125If the father was not well enough to get up, get dressed, and spend time with the children outside his bedroom, Dr F did not recommend visits occur.
126Dr F predicted that absent professional supervisors, the children may display increasing reluctance to spend time with the father and potentially cause further difficulties for the family, and the supervisors.
127Dr F supported Child B spending time with the father in accordance with his wishes. She was supportive of the orders proposed by the ICL.
WHAT IS THE LAW?
128In determining what parenting orders are to be made, the children's best interests are the paramount, but not the only, consideration.[59] The Court is not required to make findings of fact on every factual dispute raised by the parties.[60] The paramount issue for the Court is to determine what order is in the best interests of the children in the circumstances of the case. In that process, the Court "cannot be diverted by the supposed need to arrive at a definitive conclusion" on every factual dispute.[61]
[59] AMS v AIF (supra) at 277 [193].
[60] Baghti & Baghti and Ors [2015] FamCAFC 71 at [63.
[61] M v M (1988) 166 CLR 69 at 76.
129The making of a parenting order involves the exercise of judicial discretion, and the assessment of the considerations set out in the legislation by reference to the circumstances of the case. It involves value judgements 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 children.[62]
[62] Bondelmonte v Bondelmonte (2016) 259 CLR 662.
130In deciding what orders will best promote the children's best interests, I must be guided by the objects of the Act and the principles underlying them. The objects provision makes clear the children's best interests are met by:
(a)Ensuring children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the children; and
(b)Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence; and
(c)Ensuring children receive adequate and proper parenting to help them achieve their full potential; and
(d)Ensuring parents fulfil their duties, and meet their responsibilities, concerning the care, welfare, and development of their children.
131The principles underlying these objects are that, except when it is or would be contrary to the children's best interests:
(a)Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married, or have never lived together; and
(b)Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare, and development (such as grandparents and other relatives); and
(c)Parents jointly share duties and responsibilities concerning the care, welfare, and development of their children; and
(d)Parents should agree about the future parenting of their children; and
(e)Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
132The Act requires me to apply a presumption that it is in the children's best interests for their parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe either parent has engaged in child abuse, or family violence, as defined in the Act. The presumption may be rebutted by evidence that it would not be in the children's best interests for the parents to share parental responsibility.
133The parents have agreed to an order that the mother is to have sole parental responsibility. They also agree, as reflected in their respective proposals, that it is not in the children's best interests nor reasonably practicable for them to spend equal time, or substantial and significant time with the father.
134The discrete issue requiring determination is the terms and conditions surrounding the children's supervised time with the father. In determining that issue, I must consider the matters referred to in s 60CC of the Act. These comprise of two primary considerations and many additional considerations. Given the narrow parameters of the dispute, many of the factors listed in s 60CC are of little or no relevance to the issues for determination. It is not necessary, therefore, to traverse them in detail in these Reasons. It is sufficient to note I have turned my mind to each of the considerations listed in the section and will address them in detail to the extent they are relevant.[63]
CONCLUSIONS
[63] Banks & Banks (2015) FLC 93-637.
135I am required to craft orders which are in the best interests of the children. The father's health, and the limitations which his health imposes, impact on what arrangements are practicable and manageable by the father.
136It is in the children's best interests to maintain a relationship with the father, provided they are safe from harm. It is important the children's time with the father is a positive and enjoyable experience for them. Regrettably, that has not always been the case.
137The relationship between the parents is conflictual. Sadly, the children have been exposed to that conflict.
138There have been serious allegations raised about the safety of the children in the father's care, including whether the father has behaved in a sexually inappropriate manner towards Child C. I have been unable to assess and determine those matters, in circumstances where neither parent gave evidence, and accordingly, the evidence is not tested.
139I am satisfied the father has behaved in a controlling and coercive manner towards the mother, which has continued since separation. He has not respected the mother's boundaries. His conduct readily falls within the definition of family violence. The father has repeatedly used finances, in an effort to control the mother and achieve his desired objectives, without considering the needs of the children. The father's conduct reflects poorly on him, and his attitude as a parent.
140The children's time with the father, in my view, requires ongoing supervision, as conceded by all parties. I am satisfied that is in their best interests, given the multitude of difficulties associated with the visits. The father's poor health, the dynamic between himself and the paternal grandmother, and the father's conduct and comments, have been problematic over an extended period of time. The recent supervision reports highlight the father's ongoing inability to behave in a child‑focused and appropriate manner. He continues to display a lack of insight into the children's needs.
141Having made those findings, I have not ignored the father's health and its impact on his capacity to provide for the children's needs. The circumstances for the family are complex.
142The children live with the mother and it is agreed that will continue. The mother is meeting the children's needs and they are doing well in her care.
143The eldest two children have elected not to spend time with the father. Child C and Child D have each indicated a desire for supervision to continue.
144The children love the paternal grandmother and she clearly loves them. It is important the children can continue to see her, when they spend time with the father. It is agreed that should continue.
145The father has not spent time with Child C or Child D since October 2020, despite the orders. It is reasonable to expect they may be confused and upset, given the absence of any explanation from him. They may feel abandoned. There are questions as to how they might react when they next see the father.
146The father's deteriorating health, and the children's level of understanding about his health, requires ongoing monitoring and assistance. If the father's health declined in the children's presence, that could be traumatic for them.
147The father holds a negative and critical view of the mother. Dr F has raised concerns about his capacity to support the children's relationship with the mother.
148All of the parties urged the Court to make final orders, until closing submissions, when the father's counsel suggested the Court may determine that interim orders should be made only.
149The parents have been embroiled in litigation since 2016. The children are aware of the proceedings. The litigation has been the source of significant stress and conflict for each party. Having reflected on the evidence, I consider it is in the children's best interests to make final orders. It is important for the children, and the parents, to end any uncertainty about the future arrangements. I am satisfied bringing the litigation to an end, and making final orders now, is in the children's best interests.
Supervision
150Each of the father's proposed supervisors gave evidence they understood they would be required to remain within hearing and sight of the children at all times during visits, to ensure the children were safe. They each confirmed they would intervene if anything inappropriate occurred, or if they considered the children were unsafe. Mr A and Ms B confirmed they were prepared to write reports following visits, if required.
151The ICL and mother assert the father's proposed supervisors are not suitable because of their relationship with the father and the paternal grandmother. None of them are well-known or familiar to the children. Mr A raised concerns the mother may make allegations against him.
152The mother does not consider the father's proposed supervisors are sensitive to the risks posed by the father, nor is she satisfied they would report any concerning events to her. The ICL submitted, having heard the evidence of Mr A and Ms B, she was not confident they were attuned to the risk issues, and given their allegiance to the father, she shared the mother's concern about whether they would report incidents to the mother.
153Each of the father's nominated individuals have volunteered their time to supervise visits. Each of them have their own commitments, which potentially impact on their availability to supervise. For example, Mr A's work commitments means he would only be available every six weeks. Compounding that difficulty, is the need for supervised visits to occur when the father is feeling well and able to maximise his time with the children. The opportunities to do so are likely to be better accommodated with professional supervision services.
154Each of the father's nominated supervisors want to support the father and the paternal grandmother. In my view, their loyalty and alignment to the father, and the paternal grandmother, raises concerns about their objectivity and capacity to act protectively. They are not independent, nor impartial. In any event, given the significant difficulties experienced by professional supervisors managing the father's conduct, I am not satisfied other individuals could do so, or should be put in a position where they are expected to do so.
155The father's counsel conceded there had been difficulties with the visits. I do not accept that is a reason to abandon professional supervision. Rather, it supports the ongoing need for the time to be professionally supervised, to ensure the children are safe, and the visits are a positive and enjoyable experience for them. The history demonstrates the father has displayed a lack of compliance with directions from supervisors, a failure to respect boundaries and limited insight into the needs of the children. In my view, professional supervisors are best placed to manage the risks, together with the complications imposed by the father's declining health.
156After carefully examining the evidence, including advantages and shortcomings of each parent's proposals, I have concluded it is in the children's best interests for the father's time to be professionally supervised, as proposed by the ICL and the mother, and supported by Dr F. Supervision should continue through Supervision Service A, or alternatively, Supervision Service B, or such other professional supervision service provider as may be agreed between the parties.
157A professional supervisor is best placed to ensure the children's safety, and to act protectively, given the complex circumstances in this matter. It will allow the children to spend time with the father, in a manner in which they feel safe and comfortable.
158I accept the mother's evidence that professional supervision reduces her anxiety about the children's time with the father. While the mother's health has improved significantly, as the children's primary carer, her health and capacity to meet the children's needs is a relevant consideration.
159I am satisfied the father should meet the costs of supervision. It is agreed a two-hour supervised visit with Supervision Service A costs around $206. The father conceded he could afford to meet the costs, but he would prefer not to. The father is unquestionably in a stronger financial position compared to the mother. The mother meets the overwhelming burden to financially support the children, with limited child support. I am concerned that any order requiring the mother to contribute to the costs of supervision, would negatively impact on her capacity to meet the children’s day-to-day needs. That cannot be in the children's best interests.
160It is in the children's best interests for the supervisors to prepare a report following each visit, at the father's cost, to be provided promptly to the mother. The mother needs to be aware of what has transpired, to enable her to assess and support how the children are coping with visits. Absent the report, I have no confidence the mother will be informed of any issues of concern, by the father or paternal grandmother.
Child B
161It is in Child B's best interests to spend time with the father, in accordance with his wishes. Child B has elected not to spend time with his father for some time. His reasons for ceasing contact are understandable. To require Child B to attend visits, against his wishes, may result in Child B feeling resentful and frustrated towards the father. That would be counterproductive to their relationship. The father, by his conduct, accepts Child B's time with him should accommodate his views. In those circumstances, I am satisfied the order proposed by the ICL is appropriate.
Spend time with conditions and injunctions
162I am satisfied the orders proposed by the ICL about the conditions imposed in terms of where the children are to spend time with the father and the injunctions preventing the children being in the father's bedroom, or the shed, are in their best interests and reasonably practicable. Such orders will ensure the visits are comfortable and positive for the children. The injunctions are necessary, to provide clear guidelines to the father. Similarly, the injunctions restraining the father from yelling at the children, or the paternal grandmother, or speaking in a disparaging manner towards the paternal grandmother, are appropriate. I am readily satisfied such orders are in their best interests, given that behaviour has made the children feel uncomfortable.
163The supervisors should be authorised to terminate any supervised visit if the father does not comply with the orders. The supervisors will also have discretion to end the visits early, if the supervisor considers that to be in the children's best interests. Such orders are appropriate given the difficulties experienced to date, for example, when the father has become tired or irritable, or the children have wanted to leave. In my view, these orders will assist the children to maintain a meaningful relationship with the father, while protecting them from being exposed to inappropriate behaviour, or the father, at times when he is not well enough to continue with visits. Given the father's health and prognosis, the order is required to ensure the visits are beneficial experiences for the children.
164By the conclusion of closing submissions, the parties agreed the father's time with the children should occur once a month, for up to two hours, and on special occasions. I consider that to be reasonably practicable and in their best interests. It will allow the father to elect days and times when he is feeling well and at his best. It is hoped the father can maximise those opportunities to spend time with the children, which will be positive and meaningful visits.
165I will require the father to provide the mother with not less than seven days' notice of any proposed visit, and not less than 48 hours' notice of any cancellation. That will ensure there is some certainty about the arrangements. It will also ameliorate any disappointment for the children, caused by late notice that a visit is not taking place.
166The father has not elected to spend time with the children for nearly five months. His failure to spend time with the children, when he has had funds to do so and given the existing orders, is likely to have caused the children some anxiety and confusion. It cannot be in their best interests for that to continue.
167The parents agreed if the father failed to spend regular spend time with the children, then the time should be suspended. The previous consent orders made a similar provision. I intend to make an order that if the father does not elect to spend time with the children on a consistent monthly basis, for the following six months following publication of the orders, then those arrangements will cease and thereafter, the children's time with the father, will be determined by the mother. The mother can be trusted to make child-focused decisions, given her conduct to date.
(m) If either party is cohabitating with another person – the financial circumstances relating to the cohabitation
225The paternal grandmother lives with the father, and contributes to the household. She is reliant on government benefits. While the paternal grandmother has the benefit of living with the father, she is providing 24 hour a day care for him, which allows him to live at home.
(n) The terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party
226It is agreed the mother will receive a lump sum payment of $100,000.
(na) Any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage
227The father is currently assessed to pay child support of around $8 each week, but appears to be paying $25 each week, to discharge arrears. The mother is otherwise responsible for all costs associated with the children. It is not expected the father's child support obligations will significantly change, where he is dependent on Centrelink benefits.
228The father has not paid child support on a regular or reliable basis. He paid a lump sum in 2019 of $30,000. He is presently in arrears.
(o) Any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account
229The father says Property A, the largest asset, has only been acquired as a consequence of his TPD payment. Dr E opined that the father would be "severely limited in his capacity to find another house", if he were required to enter into care, he would lose the ongoing support of his mother, which may escalate his stress, and adversely impact upon his condition. Dr E noted the father was likely to worry about where he was going to live, and the implications of changed arrangements could effectively accelerate the deterioration of his condition, the details of which were outside of his expertise.
230While Dr E’s evidence was not challenged, it is unclear what evidence he relied on to reach the conclusion about the father's capacity to obtain future accommodation, the extent to which Dr E was aware of the father's receipt of funding, and his eligibility to obtain assisted accommodation, to meet his needs.
231The father says any order involving the sale of Property A would not be just or equitable and would be devastating to his health. He is unsure where he may live, and he raises questions about his capacity to afford to buy a further home, and concerns that any rental property may not have facilities adequate to attend to his needs. He is unsure whether any further accommodation would also accommodate his mother, who is his carer.
232In 2018, the father obtained approval to borrow $50,000. His subsequent applications for finance have only been approved for $30,000, but that has since lapsed.
CONCLUSIONS
233The father has no ability to earn an income. He is in poor health and has a reduced life expectancy. His health requires modified accommodation and ongoing care, to continue to live independently. The mother is a full-time parent to the parties' four children. The children will continue to live with the mother, who will be responsible for their care. The mother is unable to work, due to her parenting commitments. The father is assessed to pay only a modest amount of child support. He owes arrears of child support to the mother. Each party is reliant on government benefits. I am unable to make any assessment about the father's reasonable future expenses. The father has had access to funds that are no longer available for division between the parties, including the proceeds of sale of Property C, the trailer, and a car, which were owned during the marriage.
Section 79(4)(d), (f) & (g)
234The orders proposed by each of the parties will not have any impact upon the earning capacity of either party.
JUST AND EQUITABLE
235It is agreed the mother will receive 35% and the father will receive 65% of the property available for division. I am satisfied the agreed outcome is just and equitable in the circumstances of these parties.
236The future for each parent holds significant uncertainty. The single largest asset available for division is Property A. The father wants to continue to live in Property A. His reasons for wanting to do so are genuine and understandable. Property A has been modified to accommodate the father’s needs. It also accommodates the paternal grandmother, who cares for the father.
237The mother and the four children meanwhile live in rental accommodation. They are in strained and difficult financial circumstances. They struggle on a daily basis. They do not enjoy the same standard of living, nor accommodation, that the father enjoys. The mother requires funds for her ongoing support and that of the children.
238Having reflected carefully on the evidence, I have concluded it is just and equitable to make an order that the father pay to the mother $50,000 within 90 days and the balance, of $50,000, within 120 days. I consider that to be just and equitable. It provides the father with time to make arrangements to raise funds, while balancing the mother's need to access her agreed property settlement entitlements.
239During the trial, the father referred to making ongoing enquiries about his capacity to raise money to meet the payment, including with family. The father has now had some time in which to do so, including between the conclusion of the trial and publication of these Reasons. He has also been on notice for a number of months, of the amount which is to be paid. The father's proposals prior to trial were to pay the mother $75,000 within 180 days.[71]
[71] See the father’s Papers for the Judicial Officer filed 15 January 2021.
240In the event the father fails, refuses, or declines to make the payments to the mother, then Property A will be sold. I have reached that conclusion for the following reasons.
241Regrettably, there is simply insufficient property available for division to meet the reasonable needs of both parents. They each have pressing financial needs.
242These proceedings have been on foot for some time. The Court has a duty to end financial relations between parties, as far as practicable.[72] While I accept the father's reasons for wanting to retain Property A, I also accept the mother needs to access her property entitlements.
[72] Section 81 of the Act.
243The mother has present and pressing financial needs, which she is unable to meet. Given her circumstances and that of the children in her care, I do not consider it is just and equitable to delay the mother accessing her entitlements for an indeterminate period of time.
244To make orders proposed by the father, would allow him to live in Property A for the balance of his life. As indicated, I am unable to make any findings about his life expectancy. The father's proposals would potentially result in the mother being deprived of her property entitlements for a period of time that cannot be quantified.
245Despite the father's desire to remain in Property A, in light of his deteriorating health, that may cease to be an option. The paternal grandmother is of advanced years. She is doing her best to meet the father's complex and demanding health needs. If the paternal grandmother becomes unable, for any reason, to continue to assist in the father's care, that may impact on his ability to remain at Property A.
246I must balance the father's circumstances with those of the mother. Each party wants to be able to access their entitlements, to meet their needs. The father has agreed to pay a lump sum, which will provide the mother with funds to improve her accommodation, should she wish, and otherwise to enhance her ability to meet her and the children's needs.
247The time frames I propose will afford the father, and those assisting him, to ascertain if he can raise finance to retain Property A. If not, then he will have time to make further enquiries about his future accommodation. If Property A is to be sold, then the father will have access to a lump sum, which he can apply towards his future accommodation, as will the mother.
248In my view, if Property A is to be sold, the mother should be appointed as joint trustee for sale. She will have a vested interest in the outcome, and it is appropriate she be involved in the sale. I would consider it to be appropriate to make standard orders in that regard.
249If Property A is sold, the mother sought payment of the agreed lump sum. The father's position was less clear. The mother says given she has agreed to the payment of $100,000, she would prefer to simply be paid that amount, irrespective of the sale price.
250To simply fix a lump sum, risks resulting in an outcome which is potentially more or less favourable to either parent. Instead, I consider it is just and equitable that the mother receives such amount, as to provide her the agreed percentage of the parties' net property, taking into account the sale price and associated costs of sale for Property A, which will be readily quantified on sale.
251The parties included in the agreed balance sheet, the father's child support arrears owing to the mother. In my view, it is not just or equitable for the mother to effectively share responsibility for the debt, which the father owes to her. If Property A is to be sold, then the mother should receive the lump sum required to provide her with 35% of the parties' net property, excluding the father's child support arrears.
252In the difficult circumstances of the parties, I am satisfied the outcome is just and equitable.
253In light of my findings, I propose to hear from the parties as to the form of the property orders, to give effect to the Reasons. As a result, I will distribute the Reasons from chambers, to give them an opportunity to consider the findings, confer, with a view to submitting a joint minute.
PROPOSED PARENTING ORDERS
254Subject to hearing from the parties as to the form of the orders, I propose to pronounce orders as follows:
By Consent
1.All previous parenting orders be discharged.
2.The children, [CHILD A], born [in] 2004 ("Child A"), [CHILD B], born [in] 2008 ("Child B"), [CHILD C], born [in] 2011 ("Child C"), and [CHILD D], born [in] 2013 ("Child D") live with the Respondent Mother.
3.The Mother have sole parental responsibility for the said children with the Respondent Mother to provide not less than 30 days' notice of any major long-term decision she intends to make in writing to the Applicant Father, except in the case of an emergency.
4,Notwithstanding paragraph 3 above, the Mother be restrained and an injunction is hereby granted restraining her from moving the children's principal place of residence more than 25 kilometres from where she currently resides in [Western Australia], unless agreed between the parties in writing.
5.The children's time with the Father, be in accordance with each child's wishes upon each child turning 15 years of age.
6.In the event the Mother moves more than 15 kilometres from the Father's residence then the Mother shall be responsible for delivering the children to a handover location not more than 5 kilometres from the Applicant Father's residence.
7.In the event the Father is not available to spend time for any reason whatsoever, he is to send a text message to the Mother forthwith, and in any event to provide 48 hours' notice to the Mother of the cancellation, other than in the case of an emergency.
8.The children be at liberty to contact the Father via the Mother's Facebook messenger account between 4.00 pm and 5.00 pm each Wednesday with such communication to be supervised by the Mother.
9.The Mother use her best endeavours to encourage the children to communicate with the Father pursuant to paragraph 8 above.
10.The Mother be at liberty to terminate the communication referred to in paragraph 8 above in the event she determines the communication is inappropriate.
11.In the event the Father is not spending time with the children, and has provided notice to the Mother, the children be at liberty to communicate with the Father on the day the contact visit was to occur in accordance with paragraphs 8 to 10 above.
12.The Mother is to sign all documents required by any educational institution to which the children attend from time to time, to enable the school to release information to the Father, at his request, including school reports, newsletters and other information that would ordinarily be provided to a parent.
13.The Father be at liberty to attend the children's school assemblies and other school and sporting activities to which parents would ordinarily attend, subject to:
(a)the Father providing a text message to the Mother stating his intention to attend 48 hours prior to the event; and
(b)the wish of each child once the child is in the high school.
14.The Mother is to inform the Father of any significant illness or injury to each of the children, or attendance upon a medical specialist as soon as practicable, by text message.
15.In the event any of the children is in hospital, the Father be at liberty to visit the child/ren in hospital in the presence of the Mother or other agreed supervisor at times to be agreed between the parties in writing.
16.Within 14 days of the date of these orders, the Mother or her solicitor shall notify the Father's solicitor in writing of the toys and belongings at the Father's home that the children wish to have.
17.Within 14 days of being notified by the Mother in accordance with paragraph 16 above, the Father shall do all acts and things necessary to arrange for the toys and belongings nominated by the children to be delivered to the Mother's residence by a third party.
18.The Mother is to provide to the Father by email a copy of any significant medical reports provided to her regarding the children.
19.To give effect to these orders, the parties are to keep each other informed of their current mobile number, email address and residential address.
20.The parties shall communicate solely in relation to the children by text message or email.
21.The Father is to provide the Mother with an update regarding the condition of his health from a medical practitioner every 12 months with the first update to be provided no later than 12 months from the date of these orders and every 12 months thereafter until the youngest child turns 15 years of age.
Not by Consent
22.[Child B] is to communicate and spend time with the Father in accordance with his wishes.
23.[Child C] and [Child D] are to spend supervised time with the Father as follows:
(a)once a month, on a Saturday or Sunday, for up to 2 hours at such times as may be agreed between the parties and the supervision agency;
(b)the visits are to occur at the Father's residence;
(c)this time be supervised by either of the following professional supervision agencies with the agency using its best endeavours to maintain consistency with the same supervisor;
(i) [Supervision Service A]; or
(ii) [Supervision Service B], or
(iii)Such other supervision service as may be agreed between the parties.
(d)the Father pay or cause to be paid the costs of supervision;
(e)the Father must request and pay for a Supervision Report at the completion of each visit, with such request and payment being made within 7 days of the scheduled visit;
(f)the Father is to do all acts and things necessary to ensure that the supervision agency provides a copy of the Supervision Report to the mother at the same time as it is sent to the father; and
(g)in the event the scheduled contact visit is not to proceed, the Father is to provide the agency and the mother with 48 hours' notice of any cancellation.
24.The Father's time in paragraph 23 is conditional upon the following conditions being met:
(a)the Father is to provide the mother with not less than 7 days' notice in writing of when he proposes to spend time with the children;
(b)the Father is to provide the mother with not less than 48 hours' notice in the event he intends to cancel any visit with the children;
(c)the visit is to take place in communal living areas (such as family room, kitchen and outdoor areas) of the Father's residence at all times;
(d)the father is dressed, and available for the visit to take place in the public areas of the residence;
(e)the child or children are not permitted to enter into the Father's bedroom;
(f)the children are not permitted to be left alone in any bedroom;
(g)the child or children are not to be taken into any shed or other non-public area of the Father's residence;
(h)the Father is not to smoke whilst the children are in the home;
(i)other than the paternal grandmother, no other visitors are to be present during the visit;
(j)the child or children are not to swim in the residence pool unless the supervisor from the agency is the direct supervisor of the pool at all times;
(k)the supervision agency, and the nominated supervisor to end the visit if any of the conditions or injunctions are breached; and
(l)the supervision agency be at liberty to end the visit at their discretion if the children request to go home or in the view of the supervisor the visit is not positive or in the child/children's best interests.
25.The Father is restrained by injunction and an injunction is hereby granted restraining him from:
(a)shouting or yelling at the children or the paternal grandmother during the contact visit;
(b)speaking in an offensive or disparaging way about the grandmother or mother in the presence or hearing of the children;
(c)speaking in an offensive or disparaging way directly to the children; and
(d)speaking in an offensive or disparaging way to any supervisor.
26.The children to spend further supervised time with the father on special occasions, on the same conditions as in paragraph 23(b)–(g) inclusive and paragraph 24, on the basis that the Father is to provide not less than 7 days' notice in writing in advance to the mother prior to the scheduled visit:
(a)on the father's birthday for up to 2 hours;
(b)on each of the children's birthdays for up to 2 hours on or within 7 days of the birthday;
(c)on Christmas Day for up to 2 hours;
(d)on Easter Sunday for up to 2 hours; and
(e)on Father's Day for up to 2 hours.
27.In the event that the father does not elect to spend time with the children on a monthly basis, for 6 months following publication of these orders, then the children's time with the father pursuant to paragraph 23 be suspended and thereafter, the children's time with the father will be determined by the mother, on the basis such time continues to be supervised and subject to the requirements of paragraph 23(b)–(g) inclusive and paragraph 24.
28.The parties have leave to provide a copy of these orders to any agency involved with the supervision of the father's time, and to draw the agency's attention to the conditions in paragraph 24.
29.All applications and responses filed in these proceedings otherwise be dismissed, save and except for any application for costs.
30.This is an order to which section 68Q of the Family Law Act 1975 (Cth) applies and to the extent that this order is inconsistent with the Family Violence Order made in the case between the parties [in] 2020 in the Magistrates Court […], the aforesaid parenting order shall prevail and the Family Violence Order is invalid to the extent of the inconsistency.
31.The Deputy Registrar, Magistrates Court, 150 Terrace Road Perth cause a sealed copy of this order to be forwarded to the Commissioner of Police, the Deputy Registrar, Magistrates Court at Perth and the Chief Executive Officer of the Department of Communities.
32.Subject to the institution of an appeal by any party or the Independent Children's Lawyer, the Independent Children's Lawyer be discharged.
33.All documents produced by named persons pursuant to subpoena be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from the date hereof.
34.In relation to material tendered as an exhibit into evidence in these proceedings, on the expiration of 42 days from the date hereof, all material tendered as an exhibit into evidence, save and except for material produced pursuant to subpoena, be destroyed by the Court without notice to the parties.
35.In the event of an appeal being lodged prior to the expiration period of 42 days, paragraphs 33 and 34 above do not apply.
PROPERTY ORDERS
255Subject to hearing from the parties.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
CD
Associate
28 APRIL 2021
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