K and E

[2007] FCWA 134

JURISDICTION:	FAMILY COURT OF WESTERN AUSTRALIA
ACT:	FAMILY COURT ACT 1997
LOCATION:	PERTH
CITATION:	K and E [2007] FCWA 134
CORAM:	CROOKS J
HEARD:	14 NOVEMBER 2007
DELIVERED:	16 NOVEMBER 2007
FILE NO/S:	PT 6771 of 2000
BETWEEN:	K

Applicant/Father

AND

E

Respondent/Mother

(Page 2)

Catchwords:

Parenting orders

Legislation:

Family Court Act 1997, s 66, s 89

Category: Not Reportable

Representation:

Counsel:

Applicant:	Mr T O'Sullivan
Respondent:	Mrs E Brownlie

Solicitors:

Applicant:	O'Sullivan Davies
Respondent:	Joyce Teh & Associates

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

Nil
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1 The issue before me for determination concerns the parenting orders to be made for the child of the parties’ relationship, [Susan] who was born [in] January 2000. [Susan] is therefore 7 years of age.

Background

2 The proceedings were commenced by an application filed by the father on 6 June 2006. In his application the father sought that the parties retain joint responsibility for decisions regarding the long-term care, welfare and development of [Susan] and various other parenting orders, including an order that [Susan] reside with the father on each alternate weekend from after school Thursday to the commencement of school the following Monday.

3 The respondent mother in her response filed on 7 July 2006 opposed the orders sought by the father for joint parental responsibility and in lieu sought that she have parental responsibility for [Susan]’s day to day and long term care, welfare and development. The mother also opposed the father’s claim for [Susan] to live with him from after school Thursday to the commencement of school the following Monday each alternate weekend.

4 The trial of the proceedings for which the parties had prepared in 2006 was vacated and on 17 November 2006 the mother made application for the appointment of [the clinical psychologist], as a single expert to investigate and report on her alleged concerns about the father’s parenting abilities and inappropriate sexual behaviour both on his part and his partner, [H]. The father and [H] denied the mother’s allegations, although the father admitted he made numerous telephone calls to private dating sites which was one of the concerns raised by the mother. The father for his part alleged that the mother was attempting to exclude or at least limit his role in [Susan]’s life which included her making unilateral decisions about [Susan] without reference to him. The mother essentially denied the father’s allegations.

5 The single expert’s report was distributed to the parties in July 2007 and a supplementary report in response to a list of questions from the mother was provided by [the single expert] on 25 September 2007.

6 In preparing his report, [the single expert] was provided with copies of the relevant court papers and had interviews with the parties, their respective partners, extended family members and other persons

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considered of significance. [The single expert] also interviewed and
carried out an assessment on [Susan] as part of his brief.

The single expert’s conclusions

7 The single expert’s report concluded on page 11 that “the father has more than the capacity to provide for [Susan]’s physical, emotional and intellectual needs.” [The single expert]] made a similar conclusion in relation to the mother’s capacity to provide for [Susan] and also concluded that the mother was a devoted and caring parent.

8 In response to the question as to whether [Susan] would be at risk of abuse of any kind, from any person, [the single expert] concluded that the father does not pose any sexual risk towards [Susan] and there were no indicators that the father, his partner [H], or any of the father’s family members would abuse or harm [Susan] in any way, nor would they try and influence [Susan] against her mother or any of the mother’s family members.

9 The single expert’s report also dealt with [Susan]’s wishes and on page 10 refers to [Susan]’s wish to stay with her father on a Wednesday and then return to her mother’s home. [The single expert] also refers to what he regards as “clear signs” that the mother has both directly and indirectly influenced [Susan] in relation to her expressed wishes, which must be viewed in this context.

10 [Susan] is only 7 years of age and has been found by [the single expert] not to have the maturity or understanding in the matter. I do not regard the expression of [Susan]’s wishes in the report as being a matter for which I should give any significant weight. It is also relevant to note from the report that both parents and their respective families are considered to have done their best to provide for [Susan] and have been successful in her parenting, the end result being a well adjusted girl at school and at home withstanding a number of alleged difficulties. It is clear from the evidence that [Susan] has a close and loving relationship with each of her parents.

The evidence

11 Apart from the single expert’s reports, each of the parties filed extensive affidavit material considered to be of significance in their respective claims, including affidavits from their partners and extended family members. I have considered all of the affidavits filed by each of the parties.

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Parties negotiations

12 Much of the first day of the trial was taken up with negotiations between the parties and their legal advisors. To their credit they were able to resolve nearly all of the matters in dispute between them. On the afternoon of the first day of trial, I was presented with a document titled “Minute of Consent Orders” which recorded the terms of settlement which were agreed together with a number of provisions which although forming part of the consent Minute were in fact not agreed and were the subject of submissions to me by counsel for each of the parties.

13 The Minute was prepared on the basis of the parties giving undertakings on a “without admission” basis as specified on page 1 of the document and I have accepted undertakings from each of the parties given by their counsel in terms of the Minute. Both parties were present in court when these undertakings were given.

14 The parties have now agreed that orders be made for them to have equal shared parental responsibility for [Susan] in the terms of paragraph 1 of the Minute. I consider this to be very much in [Susan]’s best interests. Based on the evidence I have read and the single expert’s report it is clear that [Susan] will benefit from the involvement of each of her parents when decisions are made about the major long-term issues relating to her.

15 I now turn to consider those parts of the Minute where the parties were either unable to agree or subsequently agreed to a provision different from that set out in the Minute.

Agreed provisions

16 Paragraph 5 of the Minute dealing with telephone communications is to now include the provision by consent that:

“The parties are to make a telephone available for the child to
make calls in private to her parents”.

17 The parties have also agreed it is unnecessary to include reference to Easter in paragraphs 2(c)(ii) & (iii). The parties have agreed that if Easter falls during part of [Susan]’s school holiday period then the parent who is entitled to that part of the school holidays in any year shall also have the Easter period. Paragraphs 2(c)(ii) & (iii) can therefore be deleted and subject to any submissions

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from counsel be replaced by a new sub-paragraph 2(c)(ii) in following
terms:

“In alternate years commencing 2009 from 9.00 am on the second Saturday of the holidays until 6.00 pm on the Sunday before school recommences”.

Matters not agreed

18 Paragraph 2(a) of the Minute provides for [Susan] to live with her father each alternate weekend from after school Thursday to commencement of school the following Monday and extending to Tuesday if the Monday is a public holiday or a pupil free day. The mother opposed the making of this order with her counsel submitting that [Susan] should be returned to her mother on the Sunday of the weekend. To do so would enable [Susan] to have time together with her half-sister Chloe on the Sunday evening including a family meal, and would enable [Susan] to be organised for school the following day by her mother.

19 Having determined that I consider it to be in [Susan]’s best interests that an order be made for her parents to have equal shared parental responsibility, I must consider pursuant to s 89AA(1) of the Family Court Act 1997 (“the Act”) whether [Susan] spending equal time with each of her parents would be in her bests interests.

20 The father concedes both in his Papers for the Judge and the submissions by his counsel that [Susan]’s routine best suited is one in which she spends more time in the care of her mother than her father. I consider this to be an appropriate concession by the father.

21 Having determined not to make an order for [Susan] to spend equal time with each of her parents, I must then consider pursuant to s 89AA(2) of the Act, whether it would be in her best interests for [Susan] to spend “substantial and significant” time with each of her parents.

22 The evidence of the father, his witnesses and the single expert refer to the father’s significant involvement in [Susan]’s development and how she has enjoyed the benefits of this involvement. This is in addition to care and involvement she has received from her mother. The father wants to be involved in collecting and returning [Susan] to school and in all aspects of her care. Whilst the parties have also agreed for the father to have time with [Susan] from after school

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Thursday to the commencement of school on Friday in paragraph 2(b) of the Minute, I consider the father’s claim for [Susan] to stay over on the Sunday evening and be returned to school the following morning to be in her best interests and will allow the father to be more involved in [Susan]’s daily routine as contemplated in s 89A(3)(b) of the Act.

23 The father’s proposal in paragraph 2(a) of the Minute is also in keeping with the recommendations of [the single expert] as set out on page 14 of the report dated 16 July 2007.

24 The father seeks in paragraph 2(c) of the Minute to have his school holiday periods with Sophie end at 6.00 pm on the Sunday of the school holiday periods. The wife’s counsel submits the father’s school holiday period should end at 6.00 pm on the Saturday and not the Sunday claiming that to do so would give the mother an additional day and result in the parties having an equal sharing of [Susan]’s end of term school holiday periods. The father’s counsel submitted that giving him the additional day on Sunday and thereby the full weekend period, was appropriate because:

(a)	by having a full weekend period, it would extend the options and range of activities available for the father and [Susan] than if the changeover occurred half way through the weekend period on the Saturday;
(b)	given that [Susan] was to still live principally with her mother it was appropriate in any event for the father to have the extra day of the holidays.

25 On balance I favour the father’s position, particularly having regard to the provisions of s 89AA(3) dealing with “substantial and significant time”.

26 In reaching this decision on the disputed issues, I have also had regard to the provisions of s 66(1) and (2) of the Act which sets out the objects of the Act dealing with children and the principles which underlie those objects. I have also had regard to the “primary” and “additional” considerations set out in s 66C(2) and s 66C(3) for the purpose of determining what is in [Susan]’s best interests in this matter.

27 Subject to amendments to be made to the Minute of Orders as detailed in these Reasons, I propose making orders in the terms of the document entitled, “Minute of Consent Orders”.

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I certify that the preceding [27] paragraphs are a true copy of the reasons for

judgment delivered by this Honourable Court

Associate