LEESE and LEESE

[2020] FCWA 30

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: LEESE and LEESE [2020] FCWA 30

CORAM: DUNCANSON J

HEARD: 11, 12, 13 September 2018, 29, 30, 31 January, 1 February, 24, 25, 26, 27 June and 7 November 2019

DELIVERED : 5 MARCH 2020

FILE NO/S: PTW 7499 of 2014

BETWEEN: MS LEESE

Applicant

AND

MR LEESE

Respondent

Catchwords:

CHILDREN - where it is in the best interests of the children for the mother to have sole parental responsibility for the health of one of the children and for the parents otherwise to share parental responsibility - where both parties are competent caring parents - where orders are made that the children live with the mother and spend increasing time with the father

PROPERTY - where it is just and equitable to make a property settlement order - where the husband made greater initial financial contributions - assessment of contributions to date of trial - adjustment to wife for s 75(2) factors - where consideration is to be given to the form of the orders

SPOUSAL MAINTENANCE - where it is found the wife is unable to support herself adequately - spousal maintenance ordered

CHILD SUPPORT - where the grounds for departure are established - where it is appropriate to depart from the administrative assessment of child support

Legislation:

Child Support (Assessment) Act 1989 (Cth) s 116, s 117, s 124, s 125(2)
Evidence Act 1906 (WA) s 11
Family Law Act 1975 (Cth) s 60B, s 60CA, s 60CC, s 61DA, s 75, s 79
Family Law Rules 2004 (Cth)

Category: Reportable

Representation:

Counsel:

Applicant	:	Mr M Rynne
Respondent	:	Ms P Giles Self-Represented Litigant (7 November 2019)

Solicitors:

Applicant	:	Carr & Co
Respondent	:	Lavan

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

Bevan and Bevan (1995) FLC 92-600

Dickons v Dickons (2012) 50 Fam LR 244

Grier v Malphas (2016) 55 Fam LR 107

Stanford v Stanford (2012) 247 CLR 108

Steinbrenner v Steinbrenner [2008] FamCAFC 193

Walmsley & Shepard [2017] FCWA 111

Jarrott v Jarrott [2012] FamCAFC 29

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 Leese and Leese has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

INTRODUCTION

1[Ms Leese], the wife and [Mr Leese], the husband are unable to agree about the parenting arrangements for their children [Child A] aged 15 years and [Child B] aged 13 years. Currently the children live with the wife and spend time with the husband. The husband seeks orders which increase the time the children spend with him, to which the wife is opposed.

The parenting orders sought at trial

2The wife proposes that the parties have equal shared parental responsibility for the children except in relation to Child B's medical and health matters in respect of which she seeks sole parental responsibility. The wife proposes that the children live with her and spend time with the husband and in accordance with the wishes of Child A, each Wednesday before and after school and each alternate weekend from 10.00 am Saturday until 7.00 pm on Sunday. The wife proposes that the children spend time with the husband for four nights during the school holidays at the end of Terms 1, 2 and 3 and for two periods of one week each in the Summer school holidays. The wife also proposes that the children spend Father's Day with the husband on the basis that they spend Mother's Day with her.

3The wife proposes orders with respect to interstate and overseas travel and orders for the provision of information.

4The husband proposes that the parties have equal shared parental responsibility for the children, including with respect to education and medical and health matters. He proposes that in the event that a parent is unable to care for the children for one or more overnight periods, then the other parent shall be given the opportunity to do so.

5The husband also proposes miscellaneous orders with regard to changeover, telephone communication, non-denigration, travel and provision of information.

6With respect to the children's living arrangements the husband proposes that during the school term in a two week cycle the children live with him from after school on Thursday to the start of school on Monday in week one and from after school on Wednesday to the start of school on Friday in week two. He proposes they live with him on the eve of Father's Day to 7.00 pm on Father's Day and other times as may be agreed in writing between the parties.

7The husband seeks orders that the children spend time with him for one half of the school holidays at the end of Terms 1, 2 and 3 and failing agreement, the first half. With respect to the holidays at the end of Term 4, he proposes the children spend time with him in a two week cycle, similar to that during the school term, and for a two week block period in January and failing agreement from 14 to 27 January in each year.

8The husband proposes that the children spend time with both parties between Christmas Eve and Boxing Day, with handover taking place at 3.00 pm on Christmas Day and that they spend time with each party at New Year in alternate years.

THE PARTIES AND THE EVIDENCE

9Both parties filed lengthy and detailed affidavits all of which I have read and considered. Where I do not refer to evidence of a party or part of that evidence, that is not to say I have not taken it into account.

The wife

10The wife was represented by Mr Rynne of Counsel.

11The wife gave mostly truthful evidence. She was a cooperative and courteous witness. She made appropriate concessions, for example acknowledging that her actions involving herself in the marriage difficulties of family friends was unwise.

12An aspect where the wife did not give truthful evidence was in relation to photographs taken by Child A of [Ms C]. The wife acknowledged that she was upset about the "betrayal" caused by the husband's relationship with Ms C. She denied she asked Child A to take photographs of Ms C on his iPad. She was asked to check the dates of the photographs overnight and at this time she did not say she had deleted the photographs, however the following day after some questions the wife said she had deleted them but could not remember when.

13The wife said she did not know why she did not say the day before that she had deleted the photographs. She explained it was a "very sad area of conflict" and she referred to the "web of deceit" regarding the husband's relationship with Ms C. I accept that the subject of the photographs was upsetting for the wife.

14In relation to financial matters, I consider the wife's evidence was truthful and reliable. She omitted to include her receipt of Family Tax Benefit in her financial statement. She said she overlooked this and I am satisfied the omission was not deliberate.

The husband

15The husband was represented by Ms Giles of Counsel.

16Much of the husband's evidence was truthful, but in an important aspect of his evidence namely that of his relationship with Ms C, he lied. At paragraph 131 of his trial affidavit filed 7 February 2018, the husband deposed "I am not in a relationship". In paragraphs 186.67 to 186.74 of his said affidavit he described in detail his relationship with Ms C who he referred to as a friend, employee and business associate.

17The husband made no mention of Ms C in a further affidavit filed 9 February 2018.

18In the husband's affidavit filed 6 September 2018 he deposed as follows:

I have in the past stated that my relationship with [Ms C] has been limited to a friendship and a business relationship. These statements were not the whole truth, in that I did not explain the full extent of my relationship with [Ms C].

19The husband deposed that Ms C worked for the parties in [late] 2013 during which time they commenced a sexual relationship, prior to the parties' separation.

20The husband further deposed that he recognised that he should have told the whole truth about his relationship with Ms C from the beginning, but essentially his previous statements were made to protect Ms C from the wife.

21Ms Giles said the husband would seek a certificate pursuant to s 11 of the Evidence Act 1906 (WA) prior to him confirming his evidence in-chief as it related to Ms C in his said trial affidavit. Mr Rynne objected. Mr Rynne submitted that only when the husband had been asked a question which he refused to answer could he seek a certificate. Mr Rynne submitted the husband's affidavit had been filed and was available in evidence and the application for the certificate was too late.

22Ms Giles explained that the husband sought the protection which s 11 affords against self-incrimination and the time to seek that protection was when his affidavits were admitted into evidence. She referred to the decision of O'Brien J in Walmsley & Shepard [2017] FCWA 111 in which his Honour held that a s 11 certificate may only be given where a witness declines to answer a question or interrogatory and cannot be given pre-emptively in relation to proposed evidence in chief to be given voluntarily. Ms Giles submitted his Honour's decision was either irrelevant or wrongly decided and, depending on my view of this, there may not be protection for the husband.

23Counsel for the parties subsequently conferred and agreed that when the husband confirmed his affidavits, he would be asked if certain paragraphs of his trial affidavit were true. If, as expected, the husband declined to answer that question a certificate would be applied for.

24Thereafter a further certificate would be applied for when Mr Rynne cross-examined the husband on the issue. Ms Giles explained the purpose of seeking two certificates was to take into account that the first certificate may be inadequate and the intention was to maximise protection for her client.

25I indicated it was likely I would reserve my decision with respect to the issue of whether the first certificate should be granted and it was anticipated the matter would be argued at another time.

26In examination in chief, Ms Giles referred the husband to paragraphs 131, 186.3 and 186.67 of his trial affidavit and asked him if they were true. The husband declined to answer on the basis that his answer may incriminate him. Ms Giles applied for the s 11 certificate. The application was opposed. I reserved my decision.

27The husband was then cross-examined by Mr Rynne. Mr Rynne asked the husband if he agreed that at the time he swore his trial affidavit he was having sexual relations with Ms C. Instead of declining to answer as expected, the husband replied yes. Ms Giles applied for a certificate and Mr Rynne opposed the application as the husband had answered the question. I agreed that the s 11 certificate could not be granted in respect of the evidence because the husband had already answered the question. Mr Rynne asked the question again, although in a slightly different form, and this time the husband declined to answer. Ms Giles applied for, and I granted a s 11 certificate. Ms Giles said she accepted the possibility that the husband's previous answer was not protected by the certificate.

28After the resumption of the part-heard trial, [in mid] 2019 Ms Giles sought a ruling on her application for a s 11 certificate in respect of which I had reserved my decision. I discussed with counsel that it appeared that evidence the husband had given on affidavit was untrue. I stated that I did not intend to take that matter further and in particular that I did not intend to report it to the Director of Public Prosecutions. Mr Rynne indicated he concurred with my approach. As I understand it, in the circumstances of that discussion with counsel, the decision which I had reserved is no longer required and I have not therefore addressed the issue further in these reasons. If I am wrong in that understanding, it can be a matter of further discussion with counsel. The decision does not impact upon my determination of the issues in these proceedings.

29The wife submitted that the husband's "embellishment and embroidery" with respect to his relationship with Ms C reflects badly on his credit in these proceedings. While I agree with that description of the husband's evidence in this respect, I do not discount the husband's evidence in many other aspects where I consider he gave truthful evidence.

30In relation to financial matters, the husband was criticised for his disclosure. For example it was put to him that he had not disclosed the [Bank A] statement and he said the information had been provided in the financial statements of the company.

31In cross-examination I consider the husband was truthful when he said he had done his best and was perhaps understandably frustrated when he said thousands of documents had been provided. I am not persuaded that the husband has deliberately failed to comply with his duty of disclosure.

32The husband did not disclose his interest in the [Superannuation Fund A]. I consider it more likely than not that this was an oversight on his part and not a deliberate non-disclosure.

33It was put to the husband that part of a plan was to get the wife out of the family home at [Property A] so that he could continue to occupy it. The husband denied that. I do not accept his denial. The circumstances of the move from the Property A to [Property B] suggest that is precisely what the husband intended. For example, the husband left valuable items in Property A together with his clothes and he maintained the [Pay TV] subscription. The husband arranged for [Mr A's Building Company] to do some work at the property at a cost of about $190,000, he said to prepare the property for sale. I consider it more likely that he intended to spend that on a property he hoped to keep. [Mr A] had been told by the husband not to talk to the wife about his work.

34The husband was cross-examined extensively over a number of days. Ms Giles submitted that his evidence [in early] 2019 should be treated with caution insofar as it constituted any admissions against interests made by him. Mr Rynne submitted the effect of that submission was that I should discount any answers given by the husband that assist the wife or do the husband forensic harm, which he said was preposterous.

35I gave Ms Giles an opportunity to communicate with her client about this by agreement with Mr Rynne. She reported that the husband told her he was stressed and tired and was answering questions quickly to have the process end more quickly. I accept that the husband was concerned about time and that he understood that it was hoped his cross-examination would be concluded that day. Ultimately the proceedings were adjourned.

36At the relevant time the husband had been cross-examined about financial matters including his expenditure after separation and transactions on certain accounts. I have borne in mind both parties' submissions as to the husband's evidence in this respect which is relevant to my determination of line item 27 of the balance sheet and I refer to that evidence at paragraphs 305 - 309 below. The husband's difficulties have not impacted my ability to make findings with respect to the issue in question.

Ms C

37Ms C gave honest evidence. She was a cooperative witness and quite self-assured. Ms C said her physical relationship with the husband commenced at the beginning of 2014 and as to her future relationship with him she said they will be together forever. The husband had been paying Ms C $350 per week [towards household expenses].

38In cross-examination Ms C said she did not want to get involved in the proceedings and originally did not want the husband to disclose their relationship. She said this was because the wife was intimidating towards her.

39Ms C was asked about the husband's household staff who worked five days a week and she pointed out he was very busy running his business. Mr Rynne suggested the wife would have to get household staff too, to which Ms C replied "If she gets a job, that's a good idea."

Dr B

40[Dr B] is a Clinical and Forensic Psychologist. He was appointed Single Expert Witness on 11 May 2015. Dr B provided a report dated 15 August 2015, answers dated 27 September 2015 to questions posed on behalf of the husband, an updated report dated 29 January 2018, and answers dated 24 April 2018 to questions posed on behalf of the husband. Dr B also gave oral evidence.

41In his report dated 15 August 2015, Dr B described the husband as successful in his working career, but clearly had difficulties at an emotional level. It appeared to Dr B that the husband had been on a rapid learning curve to shift from being a father who worked long hours but had weekend involvement, to wanting to take on a more committed role.

42In the same report Dr B noted that in respect of the wife her profile on the personality testing suggested that she was highly stressed and somewhat rigid in her personality at the time. Dr B reported as to the parties' parenting styles, the wife was more directly interactive and the husband more observer and allowing the children to do their activities.

43Dr B reported Child A was doing well at that time and Child B would benefit from a regular review of his functioning. Dr B reported consideration to be given to the wife to have sole parental responsibility for medical decisions as conflict on how to treat Child B had made it difficult for the wife to implement recommendations from medical specialists.

44Upon re-assessment of the husband, Dr B had no new concerns. He reiterated his observation that the husband had a tendency not to fully understand the needs of the children and that the therapy he had engaged in had given him little assistance in that regard.

45Upon reassessment of the wife, Dr B reported she presented well. He described her as highly dedicated to the boys and had a little way to go in separating herself from relying on the husband.

46Dr B described Child B as having an intellectual disability which makes him quite a vulnerable child. Dr B reported Child B's level of functioning had deteriorated since the previous assessment. Child A had grown into as Dr B described, a delightful young man who is mature for his age.

47Dr B looked at the parties' parenting styles and described the husband as being quite factual and organised and the wife more emotional. He reported it is therefore harder for the children to separate fully from their mother.

48Dr B recommended that the children spend time with the husband every fortnight from Friday after school to Sunday afternoon and in approximately 12 months, that be extended to Monday, that is three consecutive nights. Dr B noted that in the alternate week, the children spend time with the husband for a few hours and he opined that a change to an overnight was likely to destabilise Child B.

49Dr B acknowledged that his subsequent opinion conflicted with his previous opinions about time. He explained that Child A has moved into an age range where his views need to be respected and the picture of Child B's functioning is a lot clearer. Consequently, his current recommendations should be given greater weight than the previous recommendations.

50In his oral evidence Dr B referred to paragraphs 49 and 50 of his updating report. He recommended that the existing arrangement whereby the children spend time with the husband from Saturday to Sunday each fortnight could change to three nights from Friday to Monday each fortnight. Dr B said to be absolutely conservative for Child B, the increase could be staggered over perhaps six months, that is an immediate increase to two nights followed by an increase to three nights after six months. Dr B said this would ensure it was well within the range for Child B and the change is gradual. He described this "as a safe path for a boy with a disability". Dr B suggested that the parties maintain the afternoon time each Wednesday.

51Dr B's recommendation was that if the children were having five nights in the holidays there could be six nights in 2020 and moving to half of the holidays in 2021 thus adding one night in the holidays each year.

52Dr B stated that three out of 14 sleepovers per fortnight plus the afternoon suited Child B's need for stability. For Child A this is the core time which he must spend with his father, but there could be an order that he spend such other time as accords with his wishes because what he wants now may change.

53Child B is two years younger than Child A, but emotionally he is several years younger. Dr B suggested when Child B is 15 years old he can elect to have extra time with his father in accordance with his wishes.

54I asked Dr B about separating the children. He said that developmentally Child B was about six years below Child A's age. Dr B was of the view that a separation of the children for more than a couple of days from each other would depend on how the parents dealt with it.

55In respect of Child B's treatment, Dr B said it was appropriate that he continue to see the psychologist [Dr D] and Dr B supported the appointment of [Dr E] as Child B's treating psychiatrist. He recommended the parties meet with the school staff to discuss Child B's educational needs.

BACKGROUND AND SHORT HISTORY

56The husband was born [in] 1952. He is 67 years of age.

57The wife was born [in] 1965. She is 54 years of age.

58The parties met in 1998.

59In 1999 the husband separated from his first wife.

60The parties commenced cohabitation in 1999.

61They married [in] 2003.

62[In] 2005, Child A was born. He is 15 years of age.

63[In] 2007, Child B was born. He is 13 years of age.

64The family lived at Property A.

65In 2013 Ms C began working for the parties. In early 2014 the husband commenced a sexual relationship with Ms C.

66On or about 14 August 2014 the parties moved to rental accommodation, known as Property B. On 19 August 2014 the parties separated and the husband moved back to Property A.

67In January 2015 the husband left Property A and the wife and children returned there where they have lived since.

68From 19 August 2014 onwards the husband spent most weekends and Wednesday mornings and afternoons with the children, but this changed to each alternate weekend by agreement in early March 2015.

69On 4 May 2017 the parties were divorced.

70In mid-2017 the husband and Ms C began living together.

Child B's health

71In February 2010 upon the recommendation of a speech therapist the wife took Child B to see [Dr F] who suggested an autism assessment.

72In April 2010, Child B was assessed for autism by an education and development psychologist and a speech pathologist. Child B was reported to have a mild intellectual disability and severely delayed language skills and moderate to severely delayed expressive language skills.

73In July 2010, Child B commenced school at [School A].

74In March 2014, Child B was diagnosed by [Dr G], Psychiatrist with generalised anxiety disorder and ADHD.

75In July/August 2014, Dr D diagnosed Child B with a mild intellectual disability.

76The parties have not managed Child B's disability cooperatively. In late 2014 Child B was prescribed a stimulant drug, Vyvanse by Dr G. He experienced side effects in that he was not sleeping and he lost weight. Dr F prescribed Ritalin to replace Vyvanse. The wife said the dose was too small and the feedback she received from Child B's teachers was that it was not assisting him. The wife put Child B back on Vyvanse and did not tell the husband of this. This was not in accordance with medical advice.

77[In late] 2014 Child B was taken to [Hospital A] having suffered a seizure. The wife was told Child B suffered [a medical condition]. She deposed she was informed his condition had nothing to do with the medication. Since then Child B has not taken Vyvanse.

78At the date of trial the wife said Child B was not taking any medication.

79It was put to the wife that she was hypocritical in not following medical advice when she had deposed that there had been occasions after separation when the husband had refused to follow medical recommendations with respect to Child B. The wife explained it had been a joint decision of the parties and Dr F to change Child B's medication from Vyvanse by reason of the effect of it on Child B's sleep and weight. She said however, Vyvanse showed good signs for him at school where he was able to engage in learning. She put him back on Vyvanse following feedback from the teachers that there had been no change with Ritalin. The wife explained she did this out of sheer desperation as she wanted Child B to learn.

80The medical advice is that Child B should be on medication and the wife' understanding is the recommendation is Ritalin.

81I accept this was a very difficult time for the wife and that she was desperate to help Child B.

82Dr B was referred to this incident in the context of parental responsibility. He said if it was a pattern of how the wife deals with health issues, one would be concerned. If it was one unfortunate incident then it became less of an issue. I agree with Dr B's view and his opinion that the wife's prime motivation was that she was desperate to help Child B at school. She was motivated by Child B's best interests.

83The parties' failure to cooperate on medical issues delayed the appointment of a psychiatrist for Child B.

84Both parties are willing to follow medical advice in respect of Child B's treatment going forward. During the course of the proceedings the parties have engaged Dr E, psychiatrist who now treats Child B. He also sees Dr F and Dr D.

85In the context of the parties having equal shared parental responsibility for decisions regarding Child B's health, Dr B said when there is a little difference between the parties as to medical issues, that would equal balance and checks, but when there was too much difference between them, that immobilises the treatment.

86Dr B said it was good that both parties are seeing Dr E, but it did not mean that they are working together or agreeing.

87Currently Child B also sees Dr D and the parties have had separate appointments with her.

The Motor Vehicle A incident

88The vehicle driven by the wife after separation was [Motor Vehicle A].

89The vehicle had an oil leak. The wife had asked the husband to get it repaired and she obtained a quote for repairs. It had not been repaired.

90In September or October 2017, the husband offered the wife the use of [Motor Vehicle B] which he purchased. The wife did not accept the offer as she said the husband was not prepared to pay for the servicing of the vehicle and she could not afford to do so.

91Prior to this on 25 May 2017, Motor Vehicle B, used by the husband, was the subject of a Court order which provided that it be delivered to the wife and she be at liberty to sell it to meet her legal costs. The wife was not able to sell it and it was too expensive to have it valued. By agreement between the parties, Motor Vehicle B was returned to the husband.

92On 7 December 2017, Motor Vehicle A broke down at [Suburb A] and could not be driven. This was very distressing for the wife because Child A was at school and had to be collected. Child B had to get to school. The wife called her sister to collect her and Child B. Motor Vehicle A was towed away. Between 2.48 pm and 3.30 pm on that day, the wife sent 39 text messages to the husband which are Annexure Q to the husband's trial affidavit. The wife said Child B was very distressed. She described it as a very stressful situation.

93On the evening of 7 December the wife asked the husband to give her Motor Vehicle B the following day. The husband replied that he would email her in the morning with points they had discussed previously in relation to Motor Vehicle B. The wife repeated she needed the car in the morning. The husband replied it would not happen that quickly and he would take the boys to where they needed to be.

94It was put to the wife that the husband had offered to take Child B to where he needed to go, but she had refused and her doing so was a further example of her not shielding Child B from her distress. The wife said the husband was using money as power, a way of control. She explained he had been paying for the servicing of Motor Vehicle A, but after the order that Motor Vehicle B be delivered to her the husband ceased doing so, at a time when he knew there were problems with that vehicle.

95There were several messages between the parties and the wife said she needed Motor Vehicle B at 8.00 am the following morning. The husband's offer to provide Motor Vehicle B was conditional. In his reply he referred to damage to Motor Vehicle B while it was in her possession and stated:

"A proper agreement needs to be in place before I provide a car. I offered you [Motor Vehicle B] months ago and you chose not to respond so you must accept responsibility for the current situation."

96The wife sent a message to the husband the following morning stating he bullied, abused and threatened her. She stated he was financially abusive. The husband replied he would provide Motor Vehicle B and pay for the servicing, licencing and insurance until settlement if the wife allowed him access to his super to pay legal fees. When the wife replied she needed the car by 8.00 am the husband said he could not get the car to her until they had an agreement in place. The text messages between the parties continued. Ultimately a car was provided to the wife.

97At the time of the messages between the parties the wife said Child B was really upset. She had promised Child B she would take him to spend the money he had earned from emptying the dishwasher to buy [toys]. A message to the husband included a video of Child B. The video depicted Child B looking very unhappy. The video does appear contrived as on two occasions Child B appeared to look at the wife filming him.

98The wife involved Child B in the dispute on this occasion. However I consider this should be kept in perspective. The wife is otherwise a devoted mother who has diligently cared for Child B, prioritised his needs, and managed his disability. I find it hard to criticise her in these circumstances. In filming Child B she made an error of judgment at a time when Child B was upset and she described both of them as "traumatised".

99The video was played to Dr B. Dr B described Child B as upset, but not distressed and said his recollection was that he was more "whingy" than distressed and also upset and distressed. Dr B recalled that Child B said something, but he did not know why Child B was upset. He did not know what the context was. Dr B agreed Child B knew he was being filmed. He agreed that filming Child B was not in Child B's best interests and he described it as highly inappropriate to do so and to use Child B in the dispute.

100The video was 59 seconds and Dr B described it as a "dot point on a picture". If there was a pattern it would be an alarming concern. He described the wife as anxious, but said he did not see a pattern of strong influence.

THE LAW

101These proceedings are determined under Part VII of the Family Law Act 1975 (Cth) ("the Act"). In reaching my decision I will be guided by the objects of that Part and the principles underlying those objects.

102Section 60B sets out the objects as follows:

(1)The objects of this Part are to ensure that the best interests of children are met by:

(a)ensuring that 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 child; and

(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

103In deciding whether to make a particular parenting order, s 60CA directs me to regard the best interests of the child as the paramount consideration. Section 60CC sets out how I determine what is in a child's best interests. I must consider the matters set out in subsections (2) and (3), being the primary considerations and the additional considerations respectively.

104Section 60CC(2) sets out the primary considerations which are the benefit to the child of having a meaningful relationship with both the child's parents, and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

105Section 60CC(2A) provides that in applying the above considerations, the Court is to give greater weight to the need to protect the child from harm.

Parental responsibility

106Pursuant to s 61DA of the Act, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the child's best interests for the parents to have equal shared parental responsibility for the child.

107Equal shared parental responsibility imposes an obligation upon them to consult as to major long-term issues regarding the child and to make a genuine effort to come to a joint decision about such an issue.

108The presumption does not apply in circumstances where there is abuse or family violence. The presumption may be rebutted by evidence which satisfies the Court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility.

109The wife seeks an order that the parties have equal shared parental responsibility for Child A and that they share responsibility for Child B in respect of all issues except Child B's medical and health matters in respect of which she seeks sole responsibility. The husband proposes that the parties have equal shared responsibility for the children.

THE PRIMARY CONSIDERATIONS

the benefit to the child of having a meaningful relationship with both of the child's parents

110Child A and Child B have a meaningful relationship with both of their parents and it is to their benefit that it continues.

the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence

111There is not a need to protect the children from harm in the care of either party.

ADDITIONAL CONSIDERATIONS

any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views

112The wife deposed that at the time of Dr B's first report, Child A enjoyed having a weekday dinner with the husband and every second weekend at his home and did not particularly wish to change this arrangement. The husband deposed that Child A had said to him that he would like to stay overnight during the week and have more time with him, including one on one time and to go away together.

113Dr B interviewed Child A and Child B last [in early] 2018. At that time Child A was 12 years of age, almost 13. Dr B described him as an intelligent and articulate young man. Child B was 10 years of age, almost 11. Dr B reported he had intellectual difficulties and ADHD and presented as suffering from significant anxiety.

114Dr B reported that Child A had liked spending time with the husband during the holidays and seemed to feel that the amount of time worked for him. Dr B reported Child A indicated he clearly wanted to live with the wife. He said he told Dr B his mother is strict, but also flexible and she makes him feel to be a priority. Child A has greater productivity at his father's, but sees him as strict.

115Child A told Dr B that being with his father for "a few days is fine during term time" and he does not mind having holiday time with him. Child A also liked the Wednesday after sport. Child A told Dr B he would like to keep the arrangements the same. He felt every second weekend was "good" and he did not like the idea of week about. He felt that on a high frequency arrangement he would get grumpy. Child A did not feel that "small tweaking" such as another night or two would have any particular impact on him, although he was a little worried about how Child B would cope.

116Dr B described Child A as mature and intelligent indicating that he did not want a lot of change, but was willing to make some adjustment. He clearly wanted the continuation of a primary home and a secondary home. Dr B did not find him especially influenced on his views.

117In his subsequent report, in answer to questions, Dr B confirmed these views of Child A. I place weight on Dr B's evidence as to Child A's views.

the nature of the relationship of the child with:

(i) each of the child's parents; and

(ii)other persons (including any grandparent or other relative of the child)

118As to the children's relationship with their parents, Dr B reported that the husband did not express a particular understanding of Child B's disability. He reported that similarly, but to a lesser degree with Child A. His impression was that Child A felt emotionally secure with his mother, but with his father it tended to be more activity based than emotionally based.

119Although the nature of the children's relationship with each of their parents is different, I am satisfied the children have a close and loving relationship with both of their parents.

120The husband deposed Child A and Child B appear to enjoy their time with his adult children, [Mr H], [Mr I] and [Ms J] and his five grandchildren.

121The husband places importance upon the children's relationship with their half-siblings. This is by reason of the husband's age and that Child B is likely to need assistance throughout his lifetime, something which the husband says Child B's half-siblings can provide.

122The children have a close relationship with their extended maternal family, including the wife's brothers and sisters and their children.

the extent to which each of the child's parents has taken, or failed to take, the opportunity:

(i)to participate in making decisions about major long-term issues in relation to the child; and

(ii) to spend time with the child; and

(iii) to communicate with the child;

the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child

123Both parties have participated in making decisions about major long-term issues in relation to the children, but the point of difference between them is that the husband says they should jointly make decisions about Child B's health, whereas the wife's position is that she should have sole responsibility for making those decisions. Both parties have spent time with the children and communicated with them, although the husband wants to spend more time with the children than he is currently doing.

124Both parties have fulfilled their obligations to maintain the children, and the wife seeks child support departure orders as set out below.

the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i)either of his or her parents; or

(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

125Currently the children spend one night each fortnight with the husband that is, from Saturday to Sunday each alternate weekend and during the day on Wednesdays both before and after school. The orders sought by the husband involve a marked increase in the children's time with him. They are therefore a significant change in the children's circumstances and involve a separation from the wife for several days at a time.

126Of importance is Dr B's assessment of Child B and his recommendations. When Dr B conducted his re-assessment he referred to Child B as being quite a vulnerable child whose level of functioning had deteriorated. Dr B reported:

47.With [Child B] with his special needs there is an argument that having a single prime home allows for greater continuity of routine, structure and rules, which are critical to ensure that his life stays stable. Given the level of his problems and the mother's more active attention to his needs I am strongly of the opinion that she must have majority time for [Child B's] wellbeing.

48.When looking at the parent’s parenting style the father tends to be quite factual and organised, the mother more emotional, therefore it is harder for the children to separate fully from their mother. I do not see this as necessarily a problem, just a simple fact of reality.

127Dr B emphasised the importance of stability for Child B. He also emphasised the need for changes to be gradually increased.

128Dr B reported that Child A did not want a lot of change, but was willing to make some adjustment and wanted the continuation of a primary home, secondary home. In these circumstances it is likely the effect upon the children of the changes proposed by the husband will be a detrimental one.

129These are strong reasons to support Dr B's recommendation that the children live primarily with the wife and spend time with the husband. This stability is important having regard to Child B's anxiety which is described by both the wife and Dr D as a significant issue.

130Dr B's recommendation of a gradual increase from one night per fortnight to three nights per fortnight is a change in the children's circumstances, but one which he expects would be beneficial to them. This arrangement takes into account both Child A's views and Child B's needs. I place weight on Dr B's recommendations in this respect.

the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis

131There is no practical difficulty and expense of the children spending time and communicating with each of their parents.

the capacity of:

(i)each of the child's parents; and

(ii)any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs

132The wife is a devoted mother to the children. In evidence she said "I just really love them and I love my role". She is very concerned about Child B and described managing his needs as complex. The wife said she is protective of Child B. She said his disability affects his executive functioning and any change needs to be fully explained. This was in the context of the husband having Ms C living at his home.

133The wife is opposed to the children spending further overnight time with the husband. It was put to the wife this is because she needs the children and fears being supplanted or swept aside if they spend more time with the husband. The wife rejected this and said she was just concerned for their safety. I accept that the wife's approach to extra time is based on her concern for the children and not her own needs.

134The wife is concerned that the husband has limited emotional understanding in relation to the children and he does not have a sufficient emotional connection with them. She is anxious about this.

135By way of example the wife referred to the husband wanting to take the children hiking for a day which she said Child B would not understand and they needed to practice in their shoes. She said the boys said there was not a lot of food in the fridge and when it was a meal time with the husband, they would have to go out and buy food.

136On an occasion the children wandered off from the care of the husband. On another occasion, Child B wandered off from the care of the wife. On both occasions the children were reunited with their parents. In my view these incidents do not reflect adversely on the parties' capacity to provide for the children's needs.

137I accept the wife's evidence that she does not sleep in Child B's bed and that she does not want to do so.

138The wife's concerns regarding the husband's emotional connection to the children were supported by Dr B in the context of Child B's anxiety. He reported that he had witnessed the anxiety and the mother, Dr D and the school had reported anxiety to be a significant issue. Dr B stated the father did not report seeing anxiety which suggested a lack of insight into emotions by him.

139The husband deposed to Child A being great company and them having much fun together. He deposed to Child B being contented in his world and happy when they are together.

140The husband's position is that he had demonstrated sensitivity by gently helping Child B dress himself, of which Child B was very proud. He reassured Child B when he became anxious riding his scooter and waited with him while he rested. Once again Child B was proud of himself for riding his scooter without becoming stressed. The husband encourages Child B to be independent and to return to his own bed if he wakes in the night. The wife conceded that was a good approach for the husband to take with Child B, but said at times she thought the expectations placed on Child B by the husband were too much. Dr B reported that Dr D was of a similar view in that she was concerned the husband pushed Child B beyond his level of capacity, although Dr B himself did not have a clear view on that.

141I consider the wife is more attuned to the children's emotional needs than the husband, but nevertheless I am satisfied that both parties are competent and dedicated parents who provide well for the children on all levels.

the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant

142I refer above to Dr B's description of both boys. The wife described Child B as a lovely happy boy. She said he has friends at school, but does not go on play dates. He will never make long-term decisions for himself and it is questionable whether he will ever live independently.

143The husband described Child B as a beautiful boy, contented in his world playing with his toys. He described Child A as a handsome happy intelligent boy with a competitive spirit and a willingness to participate.

144Child B suffers from ADHD and has a mild intellectual disability.

If the child is an Aboriginal child or a Torres Strait Islander child:

(i)the child's right to enjoy his or her Aboriginal of Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii)the likely impact any proposed parenting order under this Part will have of that right

145Not relevant.

the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

146It was suggested to the wife that she exerted an influence over the children in their relationship with the husband suggesting she had not been a positive influence. I am satisfied that the wife has encouraged the children to spend time with the husband and has permitted some limited extra time.

147The wife said both boys would benefit from time alone with the husband. She said she thought the children enjoyed their trip to [Regional Town A] with the husband and would enjoy trips away with him during the school holidays. She was open to the children spending blocks of one week of time with the children in the school holidays at the end of Term 4 in 2018.

148I accept the wife has encouraged the relationship and sincerely believes that the amount of time the children spend with the husband is best for them and accords with their wishes.

149On 29 November 2018, Child A damaged a shoe. The wife deposed she only had $100 in her bank account and told Child A she could not buy him a new pair until the following day.

150Child A telephoned the husband and told him he needed new shoes because his mother had no money to buy them. That evening the husband purchased new shoes for Child A at a cost of $180. The following day the husband deducted $100 from child support and paid the sum of $650 to the wife instead of $750.

151On 1 December 2018 the husband attended the home to collect the children. The wife informed him that if he did not pay her $100 immediately he could not have the children.

152The husband undertook to transfer $100 to her and the children were handed over to him. He promptly transferred the money to the wife.

153This incident does not reflect well on either party. It does not reflect well on the husband because his taxable income for the previous year was $464,000 per annum and he was well able to afford the cost of shoes. It does not reflect well on the wife as she withheld the children because her child support was reduced.

154This was an isolated incident. The husband ordinarily provides financial support for the children and meets their educational and other expenses. The wife ordinarily encourages the children's relationship with the husband and he does likewise.

155It is likely both parties will comply with parenting orders in the future.

any family violence involving the child or a member of the child's family

156There is no family violence involving the children or a member of their family.

if a family violence order applies, or has applied, to the child or a member of the child's family – any relevant inferences that can be drawn from the order, taking into account the following:

(i)the nature of the order;

(ii)the circumstances in which the order was made;

(iii)any evidence admitted in proceedings for the order;

(iv)any findings made by the court in, or in proceedings for, the order;

(v)any other relevant matter

157Not relevant.

whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

158It would be preferable to make final orders and conclude these proceedings in relation to the children. Final orders will provide predictability and stability for the children and certainty to the parties in respect of the children's arrangements.

any other fact or circumstance that the court thinks is relevant

159It was put to the husband that after discussions with the wife in mid-2018 he agreed to parenting orders sought by her. Exhibit 36 was correspondence between the husband's solicitors and the wife's solicitors dated 8 June and 9 July 2018. In terms of that correspondence the husband agreed to orders sought by the wife with certain additional paragraphs as set out in the letter dated 8 June 2018. In evidence the husband said the parties had a subsequent conversation in which they discussed the possibility of the wife taking the children overseas to which the husband had no objection. He said he informed the wife he would like to do the same and she refused. Accordingly agreement was not reached. In these circumstances there was no final agreement reached with respect to parenting orders.

Parental responsibility

160Both parties propose that they have equal shared parental responsibility for the children, except in relation to Child B's medical and health matters in which the wife seeks sole parental responsibility.

161An order for equal shared parental responsibility requires the parties to consult as to major long term issues regarding Child A and Child B and make a genuine effort to come to a joint decision about such an issue. Clearly they propose to do this in relation to major long‑term issues apart from health issues. They are therefore capable of fulfilling the requirements of an order for equal shared parental responsibility. The parties are able to communicate with each other. It is likely once these proceedings are concluded, with orders which provide certainty in the children's arrangements, communication will improve.

162Both parties are responsible, dedicated parents who want the best for the children. It would be in Child A and Child B's best interests that both parties have input into decisions for their long-term care.

163The parties do not fundamentally disagree as to long-term issues, for example education, although there has not been the same cooperation with respect to Child B's health.

164Although the circumstances of the parties' separation were difficult for both of them and there has been a lack of trust between the parties my orders will determine the outstanding parenting issues and minimise scope for conflict. Some concessions were made during the course of the proceedings for example, the wife agreed to allow the husband to have an opportunity to care for the children if she is unavailable.

165I am satisfied that the wife understands the importance of the husband being able to communicate both with her and the children and she said as much during the evidence.

166Financial matters between the parties have also been a cause of concern to both and has impacted on their post-separation relationship. My orders will soon conclude financial issues and consequently it is hoped the parties' interaction might improve.

167In relation to Child B's health, the wife made a poor decision when she changed his medication and reverted back to Vyvanse. She did so however for reasons which she considered to be in Child B's best interests. The husband may be critical of her in this, but I am of the view that at times he has been inflexible, for example his refusal to forward Dr B's report to Dr E although he explained he did not want the report to be sent to her before he had seen her.

168Child B's health is an issue of such importance and will remain so for his entire life. The wife has devoted her time to the needs of Child B while the husband worked long hours. The wife has taken Child B to numerous speech therapy, occupational therapy, paediatric, psychologist and psychiatrist's appointments. The wife described herself as micromanaging his daily activities. In the context of Dr B's evidence as to Child B's intellectual disability and vulnerability, this is understandable. The husband deposed his approach is one of gentle encouragement and learning and that he has a clear understanding of Child B's conditions and challenges.

169In answer to questions about the parties' differing approach to Child B, Dr B reported:

Much of my view is that the mother seemed to have a good understanding of where [Child B] was at, and it seemed to match more closely to the views of [Dr D]. The father did not seem to have the same level of understanding, and in the general tenor of the discussion with the parents the mother seemed to be more keen to try different things to help [Child B]. The father did not seem to see the severity of the situation for [Child B].

To add some clarity to the issue, I found it quite interesting that [Mr Leese] has said when talking to [Ms K] that he had made a "revelation" that he should be interested in the children to help him get closer to the children. This revelation really is what every parent should know if they have even a general understanding of children.

170Dr B reported that Dr D had indicated to him that the husband was opposed to a trial of medication and that also was his own experience. In evidence that did not appear to be the case, although I am unaware of discussions which might have occurred between the parties and Child B's treating professionals in this respect.

171The parties have agreed that Child B will be treated by Dr E, although their agreement in this respect was only reached during the course of the proceedings and they had not successfully agreed on this prior to trial. The appointment of a psychiatrist for Child B was delayed for this reason.

172As I understand it, both parties have seen Dr E although they have not seen her together. Child B is currently seeing Dr E. I have found that the wife is more attuned to Child B's emotional needs and I consider she has a better understanding of his anxiety. The possibility of disagreement delaying Child B's treatment in the future is unacceptable. Dr B reported that consideration should be given to the wife having responsibility for Child B's medical and health needs. He noted that both parties had facilitated the appointment of Dr E, but stated that this did not necessarily mean they were agreeing.

173Dr B's view was that the husband reflected no insight or understanding into the intellectual disability that Child B shows, nor did he express to Dr B a particular understanding of the disability.

174Taking into account the wife's history and involvement in Child B's care, the differences between the parties in their approach to Child B, their lack of cooperation at times and the wife's greater understanding of Child B's needs, I have concluded that she should have sole parental responsibility for matters with respect to his health. They are of such importance that decisions in this respect cannot be delayed. The wife works closely with the professionals and apart from one occasion, which has been explained to my satisfaction, she takes advice from those professionals.

175Child B and Child A will spend significant periods of time with the husband pursuant to the orders I intend to make as set out below. In these circumstances the husband should have a good knowledge of Child B's diagnosis and treatment and should be involved at all times with those professionals. In the event a medical issue arises, the wife must consult with the husband and consider his views, but if agreement cannot be reached, ultimately the wife will make the final decision.

176I am mindful of the objects of the legislation, including that children's best interests are met by ensuring that they 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 child. In all respects, apart from Child B's health, the parties will share parental responsibility which is consistent with the object of the legislation to which I have referred.

177My orders will set out precisely what the parties are required to do to give effect to the orders with respect to parental responsibility. I am satisfied that the orders are in the best interests of Child A and Child B.

The children's living arrangements

178Currently the children spend one night each fortnight with the husband, an arrangement the wife seeks to maintain. The husband seeks to increase the children's time with him to six nights each fortnight. This is a significant change which is not consistent with Child A's wishes and which is likely to have a detrimental impact upon Child B.

THE PROPOSED ORDERS

519Subject to hearing from counsel the orders I propose to make are those set out at paragraph 10 to 12 of the wife’s further amended minutes of proposed final orders to which I refer at paragraph 492 above.

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

RM
Associate

5 MARCH 2020