LOCATELLI and SMITH
[2020] FCWA 198
•9 NOVEMBER 2020
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: LOCATELLI and SMITH [2020] FCWA 198
CORAM: TYSON J
HEARD: 27 October 2020
DELIVERED : 9 NOVEMBER 2020
FILE NO/S: PTW 2330 of 2013
BETWEEN: MS LOCATELLI
Applicant
AND
MR SMITH
Respondent
Catchwords:
FAMILY LAW – Child-related proceedings – One child aged 10 – Where the mother failed to properly participate – Where orders made dismissing the mother’s Form 1 and granting the father leave to proceed on an undefended basis – Best interests – Case turns on its own facts
Legislation:
Family Law Act 1975 (Cth)
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Did not participate |
| Respondent | : | Ms Hickman |
Solicitors:
| Applicant | : | Self-Represented Litigant |
| Respondent | : | Hickman Family Lawyers |
Case(s) referred to in decision(s):
TYSON J:
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 Locatelli & Smith has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
1[Ms Locatelli] [(“the mother”)] and [Mr Smith] [(“the father”)] are unable to agree on the orders in the best interests of their only child, [Z], who is 10 years old.
2The mother and the father have a poor relationship. They have differing views about Z’s health, including whether she should be immunised. To complicate matters, the mother has failed to properly participate in the proceedings and she has questioned the validity of the Court. These matters have impacted upon the resolution of the dispute.
3The proceedings are governed by the Family Law Act 1975 (Cth) (“the Act”). The decision I am required to make, is that which is in the best interests of Z.
PRELIMINARY ISSUE
4In the mother’s filed material and correspondence with the Court, she has expressed her view that the Court is not valid and it lacks jurisdiction to make any orders in respect of Z. The mother stated she did not consent to any orders being made, other than those set out in her Minute filed on 16 October 2020.
5In the mother’s Minute, she sought “full parental rights”, an injunction restraining the father from vaccinating Z “at all ever” and an injunction restraining any person from doing so. She sought the existing interim injunction preventing Z from being vaccinated continue. If Z were vaccinated the mother sought damages of $20 million. She also sought the father enter into an undertaking for her and her family’s protection until 2030. She sought an injunction restraining the father from commencing further proceedings, and costs from 2013.
6The mother proposed Z spend time with the father for four nights when he was not at work, and up to six nights in the school holidays if he had leave, together with time on special occasions.
7The mother’s position is best explained by the contents of her most recent affidavit, filed 16 October 2020:
1.:Private and: Confidential: IT IS NOT MY INTENTION TO HARASS, INTIMIDATE, OFFEND, CONSPIRE, BLACKMAIL, COERCE, OR CAUSE ANXIETY, ALARM OR DISTRESS. THIS DOCUMENT AND ATTACHMENTS ARE PRESENTED WITH HONORABLE AND PEACEFUL INTENTIONS, AND ARE EXPRESSLY FOR YOUR BENEFIT TO PROVIDE YOU WITH DUE PROCESS AND A GOOD FAITH OPPORTUNITY OT STATE A VERIFIED CLAIM.
2.I ::[Ms Locatelli]. am a Living Women of Live Flesh and Blood flowing created by God, i stand on dry Land. My heir :[Z] :. is a Living Woman of Live Flesh and Blood flowing, created by God and born from my body, standing on dry Land. Both myself and :[Z] are not ‘persons’, ‘individuals’, or anyother misleading fiction. We are both Living Women, made of flesh and blood. We are not Australian Citizens, as that title is not of the Commonwealth jurisdiction. We are Australian Nationals, heir’s to the Commonwealth of Australia. My proof of status and Reversion Documents were received and witnessed, by the court, via email and registered post on 14th July 2019. These documents were again filed with the court as ‘ANNEXURE 1’, with affidavit on 13th february 2020. Ive also filed a 3rd copy on 19th October 2020, marked as ‘letters for the Judge’ and filed on this case number. This document clearly separates the living women from the juristic person. Courts have no jurisdiction over living women and men.
3.The Estate of [MS LOCATELLI] and [Z] are held by the Executors office :[Ms Locatelli] of the Family :[Locatelli]. [LOCATELLI] FAMILY ESTATE ABN [XX XXX XXX XXX]. There has been a Copyright Infringement, by the Family Court Registrar, [MR SMITH] and his legal team ‘Hickman Family Lawyers’. I have never given any permission in any way to use my Artistic juristic ‘person’ known as [MS LOCATELLI] and [Z]. I declare all past and future court orders Null and Void, due to Fraud.
4.I own the Copyright for the exclusive rights to the economic beneficial use of the pictorial representation of mine and [Z’s] juristic persons, [MS LOCATELLI] and [Z]. These two pictorial representations for :[Ms Locatelli] and “[Z] :[Smith] identified as “ two dimensional artistic work ” under the definition of Industrial Designs in accordance the Geneva Act (1999) of the Hague Agreement Concerning the International Registration of Industrial Designs. See ANNEXURE 2.
5.As a Living Women, Im seeking cure and maintenance immediately. In my body the Blood Flows and the Flesh Lives, nothing stands between myself and the Divine. Costs for damages, emotional distress. Courts have no Jurisdiction over Living Men and Women. I have proven my proof of claim over the Estate of [Z] and Living Woman :[Z] :[Smith]. [MR SMITH] has not proven any verified claims or right over the estate or living woman.
6.I am of sound mind and body, im competent to administer my own affairs and Estate. I object to any claims of mental instability. There is no verified claim, or doctors diagnosis of such thing. If this false slandous statement made by [MR SMITH] was a true concern, them im sure he would have requested an evaluation, or not wanted [Z] in my care. He has made no such requests, as its completely false. If i am ever subjected to an evaluation and any adverse finding is concluded, I will be lodging an immediate appeal. Furthermore, if any Magistrate, Judge, Agent, or Justice issues such and order, then any compliance on my part shall be under duress and threat and therefore any such alleged consent, oath, signature or information shall be null and void.
7.:[Ms Locatelli]. Is the Holder of the Executors Office, for the Estates of [Z] and [MS LOCATELLI]. Fiduciary Trustee for the Estate is Governor General of the Commonwealth of Australia, his excellency General and Honorable David Hurley. Executors office rescinds all hearings, judgments, contracts, orders, past, present and future is null and void.
8.I do not consent to these proceedings. Magistrates, Judges, Justices and any Agent of the Courts offers are not accepted. I do not accept [MR SMITH’S] orders sought, or any claims on his Affidavit. The only offer ill consider, is that which is outlined in my orders sought. I do not consent to being a surety for this case and these proceedings. I demand the Bond be immediately brought forward, so i can see who will indemnify me for the damages, I have already suffered and for any future damages. If any Orders made without my express consent in writing, I will be lodging an immediate appeal. Furthermore, if any Magistrate, Judge, Registrar, Agent, or Justice issues such an order, then any compliance on my part shall be under duress and threat and therefore any such alleged consent, oath, signature or information shall be null and void.
9.The Clerk of the court is the Trustee for the Cesti Quie Vie Trust, which is owned by the state. The Clerk is the Cesti Quie Vie’s Trustee who has appointed the Judge, Magistrate, or Justice presiding as Administrator of the constructive trust case PTW 2330/2013. I’m the beneficiary of the Trust, as beneficiary, I authorize you to handle the accounting and dissolve this constructive trust. I now claim mine and my offspring :[Z’s] body, so I am collapsing the Cesti Quie Vie Trust which the Clerk will charge, as there is no value in it.
10.I hereby discharge with prejudice, all past and current court hearings, orders, including but not limited to the Trial on 27th, 28th and 29th October 2020 for this case number – PTW 2330/2013. I declare all acts Null and Void, case dimissed and closed
11.The Estate and myself have suffered Damages and outstanding costs for services rendered. Outstanding costs must be paid by [MR SMITH] by 30th November 2020.
12.The Family Court of Western Australia and [MR SMITH], need to provide a signed Affidavit from the Australian Attorney General, outlining evidence and proof, including what Laws and its original origin, show that the Government of Australia, or any State, have any authority over Living Men and Women, or their Living Offspring-Heir’s. I will not accept any Statutes, Directives, or Acts, as they are not Law for the living and many conflict with the Australian Constitution, which i stand with.
13.I am a secured party creditor and the state of [MS LOCATELLI] will not be surety for this matter, or any other related to case number PTW 2330/2013.
14.If any Agents, Judges, Magistrates, Registrars or Justice from the Courts, continue to cause distress and harm to the estate, they will be held personally liable. Any orders which lead to [Z]or [MS LOCATELLI], or living wormend :[Ms Locatelli] and :[Z] :[Smith] being harmed in any way, physically, emotionally, spiritually or financially, the Agent from the Court and the Registrar will be liable for all damages. See attached Fee schedule. To go ahead with making orders without my consent, is your compliance and acceptance of these non negotiable terms and fee schedule supplied in ‘ANNEXURE 03’.
15.I declare all previous orders on dates marked 22/09/2020, 14/08/2020, 17/02/2020, Null and Void. There was no consent given by me, no attendance, no meeting of the minds, i did not sign any of the orders, nor did anyone else. They are apparently signed by “REGISTRAR’, who is this REGISTRAR? Theres no name, no liability and therefore Fraudulent. I call on this REGISTRAR so that i may seek remedy. I also compel the court to immediately terminate, discharge and remove these fraudulent orders and to dimiss this case, close the case and costs awarded to [MS LOCATELLI} estate.
…
8With respect to the mother, what is written is unintelligible in any legal sense. It misunderstands the Commonwealth Constitution, the validity of the Act and is entirely lacking in legal merit.
9Further, there is an inconsistency between the mother’s position that the Court lacks jurisdiction, while then seeking orders from the Court.
SHORT HISTORY
10The father was born [in] 1975. He is 45 years of age and employed on a fly-in fly-out (“FIFO”) basis. The father has worked on a FIFO basis for the past 13 years. He is currently completing [additional studies through this employer]. The father’s current roster requires him to work two weeks on, one week off, flying on a Thursday. That roster is interrupted when the father is required to attend [classes], which is usually scheduled from Thursday to Tuesday. The father anticipates he will complete his studies within the next year. The father receives a roster from his employer, including his study requirements many months in advance. He provides a calendar to the mother with his roster and study commitments.
11The mother was born [in] 1979. She is 41 years of age. She is presently a full-time homemaker and parent. The mother is a [massage therapist and motivational speaker]. It is unclear whether the mother works outside of the home.
12The mother and the father commenced living together in 2002 and married [in] 2008. Z was born [in] 2010. In June 2012 the mother and the father separated, when Z was two years old. They have since divorced.
13The father married [Ms Y] [in late] 2018. Ms Y is a [network controller]. Ms Y and the father live in [Suburb A].
14The mother is in a relationship with [Mr X]. They met in 2012 and have been engaged since 2013. They have two children: [W] born [in] 2015 and [V] born [in] 2018, who are five and two years old respectively. They live in [Suburb B].
Care of Z during the Marriage
15The mother was the primary parent during the marriage. She was a full-time homemaker and parent, while the father worked. The father was actively involved in Z’s care when not at work, facilitated through his roster which meant he was home for extended block periods of time.
Circumstances since Separation
16On 3 May 2013 the mother and the father entered into an application for consent orders, with respect to both parenting and financial matters.
17In 2015 the father commenced parenting proceedings. The mother sought liberty to relocate Z to [State A], to facilitate Mr X’s employment. Those proceedings were listed for trial. Mr X subsequently obtained work in Western Australia and to the credit of the mother and the father, they resolved proceedings by consent in August 2016.
18The consent orders provided for the father and the mother to have equal shared parental responsibility, for Z to spend time with the father during his rostered time off from after school on Friday until the commencement of school on Tuesday, for seven consecutive nights following term one, four consecutive nights following terms two and three and 14 nights in the summer school holidays. Each parent was restrained from changing Z’s principal place of residence without the prior written consent of the other parent.
Arrangements after the Consent Orders of August 2016
19Z then lived with the mother and her family in [Suburb C], while the father lived in Suburb A. Z attended [Suburb C Primary School] from kindergarten until mid-August 2018.
20Z spent time with the father in accordance with the orders, including block periods in the school holidays, on Z’s birthday and Christmas. The father repeatedly sought to increase Z’s time with him. The mother would not agree.
21On 25 July 2018 the mother emailed the father, advising she was moving house that weekend. The mother withdrew Z from Suburb C Primary School and enrolled her at [Suburb B Primary School]. The mother’s decision was unilateral and it was opposed by the father. Z continues to attend Suburb B Primary School.
Current Proceedings
22On 27 July 2018 the mother filed an Initiating Application, seeking sole parental responsibility of Z on a final basis, for Z to continue to live with her and spend time with the father every third weekend.
23When the matter first came before the Court in December 2018, the mother and the father were both legally represented. They agreed to vary the interim orders, to facilitate Z spending time with the father in accordance with his new roster, together with time on special occasions. They agreed to use Our Family Wizard to communicate and the father was to have telephone contact with Z each Tuesday and Saturday, when he was not spending time with her.
24Both parents were restrained from removing Z from school and from taking her to any medical centre other than [Suburb B Clinic] (“the Clinic”), without the other parent’s consent. Each parent agreed to give notice of medical appointments for Z, with each being permitted to attend. They agreed to arrange an appointment for Z to attend [Hospital A] within 14 days, for assessment by an immunologist or gastroenterologist and then comply with any recommended treatment.
25They agreed at paragraph 15, “to do all things and acts and sign all documents necessary…to causing Z to be fully inoculated, with respect to varicella, DTP, Polio, MMR and any other inoculations agreed, with such inoculations to be conducted one at a time, be spaced out in 6-month intervals and occur during the Father’s time”.
26Both parents agreed to mutual non-denigration injunctions and from discussing with Z any activities planned during the other parent’s time, without their consent. The proceedings were then programed to a Readiness Hearing.
27At the Readiness Hearing on 28 March 2019 neither parent had filed their trial material. At the adjourned Readiness Hearing, the mother had not filed any trial material. Orders were made extending the time for compliance, and failing which the proceedings be remitted to the presiding Magistrate to consider granting the father leave to proceed on an undefended basis. Orders were subsequently made in chambers giving the mother a further opportunity to file and serve her trial material by 31 July 2019, failing which the mother’s application would be dismissed.
28In October 2019 the father began [his studies and] a new roster, requiring him to work two weeks away and one week at home. That led to difficulties in the father spending time with Z and he filed an application in a case.
29On 17 February 2020 the proceedings came before the Court. The mother failed to attend. Interim orders were made providing for Z to spend time with her father, in accordance with his roster. In March 2020 the father’s roster changed again, as a consequence of COVID-19. His new roster was then four weeks on, two weeks off. The father provided his new roster to the mother on 9 April 2020.
30On 30 April 2020 the mother advised she intended to continue to home-school Z into the foreseeable future.
31On 26 May 2020 the father was notified that his roster would revert back to two weeks on, one week off on 22 June 2020. He informed the mother.
32On 9 June 2020 Suburb B Primary School advised Z had not been attending school, resulting in the father filing a further application.
33On 2 July 2020 the matter came before the Court. The mother again failed to attend. Interim orders were made for Z to spend time with the father in accordance with his roster for four consecutive nights, for Z to spend 12 days make-up time with her father and for the mother to ensure Z resumed attending school.
34From 20 July 2020 Z recommenced attending school.
Undefended Proceedings
35The chronology highlights the mother’s failure to properly comply and participate. The mother failed to attend Court on 2 September 2019, the interim hearings held on 17 February and 2 July 2020, and the Status Hearing. Despite attempts by the Court to facilitate the mother participating by telephone, she has not answered calls.
36Communications from the Court have been sent to the mother at the address in her Notice of Address for Service filed 9 June 2020, and to her email.
37On 22 September 2020 the mother failed to attend and three unsuccessful attempts were made to contact her by telephone. On that date, orders were made giving the mother leave to file and serve a minute setting out the orders she sought, an updated affidavit, and her papers for the judge. If she failed to do so and failed to appear at the trial, then the mother was put on notice that the matter may proceed in her absence, without further notice to her. The mother was ordered to attend the trial in person, in the absence of any order approving her attendance by electronic means.
38The orders were sent to the mother by email, together with correspondence from the Principal Registrar.
39My associate contacted the mother on 19 October 2020 and she acknowledged receipt of the orders and correspondence from the Court and confirmed her email address. The mother was reminded of the requirement to personally attend the trial.
40The mother was advised by telephone the day prior to the trial that it would be commencing. When the matter was called in Court, there was no appearance by the mother. A number of attempts were made to contact the mother by telephone, without success. The matter was stood down to allow an email to be sent to the mother, before the matter was recalled and a further attempt was made to contact her by telephone, without success.
41The father made an oral application to dismiss the mother’s Form 1 and sought leave to proceed on an undefended basis. I was satisfied that order was appropriate. The mother was aware of the proceedings. She was on notice the trial would commence on 27 October 2020 and it would proceed in her absence, if she failed to attend.
42In considering that issue I was conscious that the Court needs to have appropriate evidence before it in order to determine what is in the best interests of Z. I was satisfied the evidence before the Court was sufficient and the Court should make its decision based on that evidence alone.
Z’s Health
43The mother and the father have disagreed on the management of Z’s health. The mother considers Z suffers from coeliac disease, food protein induced syndrome (“FPIES”), MTHRF Gene Mutation, dairy intolerance and has a sensitivity to chemicals and preservatives. As a result, the mother has placed Z on a restricted diet; she describes Z’s health as fragile and it is vital Z only uses natural, organic products.
44In 2015 the father took Z to see a clinical immunologist and allergy specialist, [Dr U]. Dr U administered a skin prick test for allergies and prepared a report [in] December 2015. Dr U was unable to elicit any symptoms of either food allergy or food intolerance. The father informed Dr U that the mother had consulted a naturopath and she considered Z had food intolerances resulting in Z’s diet excluding red meat, potato, rice and wheat products. Dr U wrote:
I am most concerned that [Z’s] diet is not adequate for a growing child, and have referred her to [Ms T], paediatric dietician, to check this.
I am also concerned that [Z] has not had any immunisations since she was 1 year old. By now she should have had Varicella vaccine at 18 months, and DTP, polio, and MMR boosters at age 4 years.
45In April 2016 Z attended [an] immunology clinic. Correspondence from the clinic dated July 2016 recorded the mother’s reported history of Z having adverse reactions to corn, and whether that was consistent with a food protein induced enterocolitis. The mother requested a challenge to prove this, which the clinic were reluctant to do at that time. The clinic observed the mother had tried the FODMAPs diet, consulted a naturopath and trialled a number of diets for Z. They wrote there was very little science to support such diets, with the exception of possibly FODMAPs.
46In [mid] 2017 Z attended [Hospital B] for coeliac testing for food intolerances. No formal diagnosis was made. Z was positive for the coeliac gene. The testing indicated Z did not demonstrate food intolerances.
47In September 2017 Z completed a food challenge for corn, which did not reveal evidence of FPIES.
48In May 2018 Hospital B noted the mother had reported Z suffering from gluten intolerance and her suspicion that Z had coeliac disease. Hospital B wrote there was no serological evidence of coeliac disease and did not recommend Z undertaking an endoscopy.
49According to the father, none of the testing has provided evidence of Z suffering from any allergies, intolerances or immune issues, as claimed by the mother.
50The father says the mother has demonstrated a refusal to engage with medical professionals who do not agree with her views. She has refused offers to discuss Z’s diet at Hospital B when offered. She failed to attend an appointment at [a diet clinic] in [late] 2015. She continues to provide Z with a restricted diet.
51The father does not consider that Z has demonstrated any food allergies or intolerances in his care. He agrees if Z did, to seek medical assistance.
The mother’s health
52The mother says she has been diagnosed with [an autoimmune disease]. In [mid] 2016 the mother advised the father:
[The autoimmune disease] has spread through to my heart, lungs etc, may be losing my whole bowel (they will try to save as much of it as they can), also I already told you I have cancer in the bowel & need to start treatment now. My bowel & intestines are ruptured & I have life-threatening obstructions in 2 places (that’s why I’m having surgery). I won’t know the level of cancer (staging), until after next surgery.
53The father is not convinced the mother had cancer. He considers the mother has suffered from [mental health conditions]. There was no admissible evidence to support any finding about the mother’s health.
Z’s Vaccination
54Z received the recommended immunisations from birth until she was 12 months old, as set out below.
| Date given | Immunisation |
| [Mid] 2010 | Diphtheria, Tetanus, Pertussis, Hib, Hepatitis B, Polio, Pneumococcal, Rotavirus |
| [Mid] 2010 | Diphtheria, Tetanus, Pertussis, Hib, Hepatitis B, Polio, Pneumococcal, Rotavirus |
| [Mid] 2010 | Diphtheria, Tetanus, Pertussis, Hib, Hepatitis B, Polio, Pneumococcal, Rotavirus |
| [Early] 2011 | Hib, Meningococcal C, Measles, Mumps Rubella |
55Z has not received the Varicella vaccine due [in mid] 2011, or Diphtheria, Tetanus, Pertussis, Polio, Measles, Mumps and Rubella due [in early] 2014.
56Following the consent orders in December 2018, the father made arrangements for Z to be vaccinated at the Clinic. On 20 March 2019 [Dr S] confirmed Z’s vaccinations were booked for 27 April 2019. The father notified the mother. On 24 April 2019 the mother wrote to Dr S stating she objected to Z being vaccinated, notwithstanding the consent orders.
57On 26 April 2019 the father collected Z from the mother’s home. The mother sent a text message to the father, demanding he return Z immediately. That evening Dr S rang the father, indicating the mother had advised she would be attending the scheduled appointment. Later that night, at the mother’s request, the police attended the father’s home to conduct a welfare check on Z.
58On 27 April 2019 the father attended the Clinic with his wife, Ms Y, and Z. Dr S explained to Z what the vaccinations were for, when the mother arrived. The mother objected to the vaccine being administered. The mother advised her partner was on his way and he may not be able to control himself when he arrived. Mr X attended and said to the father, words to the effect of “if you ever come near my house again I am going to cut your hands off, then I’m going to cut your tongue out”.
59Ms Y asked him why he would make such comments, in the presence of Z and his children. Ms Y then rang the police. Mr X subsequently apologised by SMS to the father. The police attended and spoke to both parents. They permitted the mother to leave with Z.
60The father says Z was confused and distressed by the scene at the Clinic. He elected not to proceed with the vaccinations, to avoid further distress to her.
61Following the April 2019 incident, Dr S wrote to the father, advising at that time, Z had no contraindications for vaccinations and referred to the West Australian immunisation schedule.
62The mother then kept Z home from school for the following week.
63On 6 May 2019 the mother obtained two interim Family Violence Restraining Orders, protecting herself from the father and Ms Y. The VROs were served the following day. The mother referred to the incident at the Clinic in support of her application. The VROs have since been resolved by way of an undertaking.
64On 15 May 2019 the mother filed an application seeking Z’s time with her father be supervised and he be restrained by an injunction from having her vaccinated. In response the father sought enforcement of the orders made by consent in December 2018.
65Z then had no contact with her father for a period of approximately six weeks. In June 2019 orders were made suspending the previous orders for Z to be vaccinated, on an interim basis.
66The mother opposes Z receiving any further vaccinations. In the mother’s communications with Dr S she has questioned the efficacy of vaccines, the risk vaccines may pose and the potential side effects.
67The father explained while he considers it is in Z’s best interest to be immunised, he does not want to cause her further distress or anxiety, given the mother’s strong views. The father says Z is now fearful of being immunised.
68The father previously sought an order for sole parental responsibility to make medical decisions for Z. He has elected not to pursue that. He says the parties should have equal shared parental responsibility, in accordance with the consent order made in 2016.
69In the absence of any admissible expert evidence, I am unable to make any findings about whether it is in Z’s best interests to be vaccinated, or more general findings as to her health.
Telephone Contact
70The interim orders provide for the father to speak to Z twice each week. The father says there has been a history of the mother blocking his calls or threatening to do so. The father has produced a log of such calls. For example, [in] around April 2019 the mother blocked the father’s phone so that he was unable to communicate with Z for approximately eight weeks.
71The father says the mother monitors telephone calls, and on occasions will interrupt and make denigrating comments.
WHAT IS THE EVIDENCE RELIED UPON?
72The father relies upon his affidavits filed 4 June 2019 and 21 October 2020. He no longer relies on the affidavit of his wife. He also gave some oral updating evidence at the trial. I accept his unchallenged evidence.
WHAT ARE THE ORDERS SOUGHT?
73The father seeks orders in terms of the minute, contained in his papers for the judge, as amended. His proposed orders largely mirror the existing orders with the following variations.
74He seeks Z’s time commence on the day after he flies in, from the conclusion of school, for between five to six consecutive nights. If he obtains a Perth-based role, he seeks Z spend alternate weekends from Friday evening to Sunday evening and two additional nights to be nominated by him in the alternate week. He seeks handovers occur at school, and otherwise the mother’s home.
75The father seeks Z spend time with him on special occasions, for one week in each of the short school holidays, two weeks during the summer school holidays and an additional period of up to 10 nights in each calendar year to facilitate an interstate holiday, if he has leave from employment.
76In the event either parent seeks to obtain a passport for Z, the father seeks Z be vaccinated for varicella, diphtheria, tetanus and pertussis, polio, measles, mumps, rubella and COVID-19 (if available). In the absence of Z being vaccinated, he seeks an injunction restraining either parent from obtaining a passport for her.
77He seeks Z complete her primary schooling at Suburb B Primary School and the mother be able to enrol Z at a high school in the Suburb B catchment area on providing 30 days’ notice to the father.
WHAT IS THE LAW?
78These proceedings are determined under Part VII of the Act. In reaching my decision I will be guided by the objects of that Part and the principles underlying those objects as set out in s 60B.
The objects 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.
79In deciding whether to make a particular parenting order, s 60CA directs the Court to regard the best interests of the child as the paramount consideration. Section 60CC sets out those matters which the Court must consider in determining what is in the child's best interests.
80I must consider the primary and additional considerations. Subsection 60CC(2) sets out the primary considerations, which are the benefit to the child of having a meaningful relationship with both of 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.
81Subsection 60CC(2A) provides that in applying the above primary considerations the Court is to give greater weight to the need to protect the child from harm.
Parental responsibility
82Pursuant 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.
83Equal 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. Major long-term issues are specifically defined in the Act at s 4 as issues about the care, welfare and development of a child of a long-term nature.
84The presumption that it is in the child's best interests for the parents to have equal shared parental responsibility for the child does not apply in circumstances where there is abuse or family violence.
85The 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.
PRIMARY CONSIDERATIONS
the benefit to the child of having a meaningful relationship with both of the child's parents
86I am satisfied Z has a meaningful relationship with both of her parents. It is in her best interests to maintain those relationships.
the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence
87There have been historical allegations about family violence. The mother alleged the father had behaved in a violent manner towards her, which the father denied. The father alleged the mother and her partner had behaved in an aggressive manner towards himself and his wife at the appointment in April 2019. Apart from that incident, it does not appear there have been further issues between the parties. In the circumstances, I am not satisfied Z is at risk of being exposed to family violence.
88While the father raises a number of concerns about the mother’s views and beliefs, the diet which Z is on and their differences in addressing Z’s health, he does not suggest Z is at risk of harm in her care. He accepts the mother loves Z and she provides for Z’s needs, to the best of her ability.
89I am not satisfied on the available evidence that Z is a risk of harm in her father’s care. In light of the time the mother proposed Z spend with him, she is clearly satisfied Z is safe doing so.
ADDITIONAL CONSIDERATIONS
any view 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
90Z is 10 years of age. There is no independent evidence as to Z’s views nor any assessment of her maturity. In light of her age, I am not satisfied that any weight could be attached to her views in the circumstances.
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)
91Z has a close and loving relationship with each of her parents. The father says Z also enjoys a warm and loving relationship with his wife, together with his parents and extended paternal family. I expect Z also enjoys a warm and loving relationship with the mother’s partner Mr X, together with her siblings W and V.
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;
92The mother has made major long-term decisions about Z notwithstanding the order for the parties to have equal shared parental responsibility. The father has sought to participate in major long-term decisions, including health and education. He wishes to continue to do so.
the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child
93Each parent financially maintains Z. The father pays child support as assessed, of around $1,100 each month. He meets costs relating to Z’s extracurricular activities, when she is in his care.
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
94Z currently lives with her mother and spends time with her father in accordance with the interim orders made in July 2020. Presently, Z spends between four and five nights with the father when he is not at work, which included make-up time. To the mother’s credit, she is complying with those orders.
95Z has been spending substantial and significant time with her father for many years. That time has been disrupted when the mother has not complied with orders. The father has consistently sought to spend regular time with Z.
96The father says Z has coped well with the additional time and has expressed a desire to spend increased time in his care. On his proposals, Z will spend between five to six consecutive nights in his care. He is confident Z will manage the additional time given her age, the close relationship she enjoys with him and his wife and the regular time they currently spend together.
97In light of the father’s evidence, any reduction in the time Z spends with her father would not be in her best interests and not enable her to maintain their meaningful relationship.
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
98The father lives in Suburb A while the mother lives in Suburb B. Subject to traffic, it takes around 45 minutes to drive between their respective homes. I have already referred to the father’s work roster which imposes an additional difficulty.
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
99While the father expressed concerns about the mother’s attitude to Z’s health and education, he does not suggest the mother is unable to provide for Z’s needs. He agrees Z should continue to live with the mother, but on the condition the mother ensures Z attends school and she attend one medical practice. It is important Z attends school on a regular basis, to ensure she can achieve her academic potential, to form friendships and derive the many benefits which school offers.
100The father facilitates Z attending [multiple extra-curricular activities] when in his care. He is not aware of Z doing any activities in her mother’s care, despite offering to pay for Z to do so. The father says Z enjoys the activities, which offer her an opportunity to form friendships outside of school.
101It is preferable that Z continues to attend the Clinic. That ensures both parents have input into Z’s medical treatment, and provides continuity in Z’s care. It also ensures Z is not subjected to appointments with multiple medical practitioners, and subjected to further testing, to support either parent’s view about Z’s health.
102The father says the mother has made negative comments to Z about him and his family. There is an interim mutual non-denigration order in place. It cannot be in Z’s best interests to be exposed to any parental conflict. In my view, it is important that Z is shielded from such conflict. That order continuing is in her best interests.
103On the basis of those conditions remain, I am satisfied both parents have the capacity to provide for Z’s needs.
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
104The father says Z enjoys drama and participating in outdoor activities with him, such as camping. There is no other admissible evidence about any particular characteristics of Z.
if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or 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 on that right
105This consideration is not relevant.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
106The father says the mother has not always demonstrated an appropriate attitude towards the responsibilities of parenthood. He points to the mother’s unilateral decision to change Z’s school, her failure to facilitate telephone contact, her decision to suspend Z’s time with him and not ensure Z’s regular attendance at school. He is concerned in the past, the mother may have sought Z undertake medical testing, which was not required.
107I anticipate the mother considers she has demonstrated an appropriate attitude to parenthood, she has acted responsibly and in accordance with what she considers to be in Z’s best interests. I observe the mother’s Minute provided for Z to regularly spend time with the father. She facilitates Z’s time with the father.
108The father describes Z as a happy and content child, which is a positive reflection on the parenting she has received to date.
any family violence involving the child or a member of the child's family
109I refer above to my findings in this respect.
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
110There is no VRO in place.
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
111Z’s parents have been embroiled in litigation for many years. It is in Z’s best interests for the proceedings to be brought to an end. In light of the father’s roster being subject to change, it is important that any orders facilitate future changes. I consider that is critical, to avoid further proceedings.
any other fact or circumstance that the court thinks is relevant
112Child-related proceedings are, to an extent, by their very nature, interim. The mother has not properly participated in these proceedings. In these circumstances, the Court has limited options. I am satisfied the orders I propose to make are in Z’s best interests.
CONCLUSIONS
113Having carefully considered all of the evidence in the context of the primary and additional considerations, I have come to the following conclusions.
Parental Responsibility
114Despite the differences between the mother and the father, they each have much to offer as parents. They each wish to be involved in making decisions about major long-term issues concerning Z. In my view, it is in Z’s best interests they each do so. I observe the parties previously agreed to an order for equal shared parental responsibility. I am satisfied that order is in Z’s best interests.
115I am satisfied the orders the father proposes which provide for the mother to select Z’s high school, provided it is in the catchment area where she lives and notice is provided, are in her best interests. They also appear to be sensible and pragmatic in the circumstances.
Live With Orders
116As a result of making an order for equal shared parental responsibility, I must consider whether it is in Z’s best interests to spend equal or substantial and significant time with each parent, and whether such an order is reasonably practicable.
117The father agrees Z should live with the mother. It is not reasonably practicable for Z to spend equal time with the father, due to his work commitments.
118I am satisfied it is in Z’s best interests to spend substantial and significant time with her father. I consider the orders proposed by the father to be appropriate. They provide Z with the opportunity to continue to spend regular time with him, and to maintain their relationship. They also accommodate potential changes to his roster. I consider that is important, to provide Z with certainty and regularity in spending time with each parent. It will assist to avoid further disputes.
119Since 2015 Z has been spending four consecutive nights with her father. Z is now familiar spending up to five nights in her father’s care. In light of her age, and the time she has spent with her father and away from her mother, she will manage those arrangements moving forward. The orders facilitate Z’s ongoing participation in extra-curricular activities when in her father’s care. The father is able to care for Z. I am satisfied these arrangements are in her best interests and are reasonably practicable.
120I propose the father provide to the mother not less than 30 days’ notice if he has leave and wishes to spend time with Z in the school holidays. That will ensure the mother has ample notice and can make her own plans. The father indicated he could do so. The holidays offer Z an opportunity to enjoy longer periods with her father and the chance to travel. It is important Z can enjoy holiday time with each of her parents. The proposed orders will enable her to do so.
121Z will spend time with each parent on special occasions, and have ongoing telephone contact with her father when he is at work. I have proposed minor modifications to the handover arrangements to ensure consistency in the orders.
122I consider the injunctions proposed to be in Z’s best interests. Z will complete her primary schooling at her current school, attend the Clinic and not be exposed to any negative remarks by either parent against the other.
123Given the history of disputes between the parties, it is appropriate to make orders as sought with respect to the parties’ communicating. They will ensure each parent has input into medical and other important decisions for Z, which is in her best interests.
124I am not satisfied it is in Z’s best interests to make the orders sought by the father, to compel Z to be immunised if she travels overseas. As I have already observed, there is an absence of any admissible expert evidence about Z’s health, to enable the Court to make findings.
125Z does not have a passport at this time. Neither parent is currently able to travel abroad, as a result of COVID-19 and the hard borders presently in place. There was no suggestion either parent had plans to travel in the near future.
126If and when either parent wishes to travel with Z, they should confer about those arrangements, with the benefit of the circumstances at that time. If there is no agreement about whether Z should be permitted to travel abroad and/or be immunised, then they should attend family dispute resolution in an effort to resolve those matters, failing which an application can be made. I will make an order in those terms.
127That is the extent to which I am satisfied arrangements are in Z’s best interests.
Proposed Orders
Upon the Form 1A Response to Initiating Application of the Father filed on 14 August 2018 and on the following bases:
•the Applicant, [MS LOCATELLI], is referred to in these orders as “the Mother”;
•the Respondent, [MR SMITH], is referred to in these orders as “the Father”;
•the Mother and the Father are referred to collectively in these orders as “the parties”;
•the Mother and the Father are the parents of the child, namely [Z] born [in] 2010;
•The Father is working on a fly-in, fly-out basis (“FIFO”); and
•It is contemplated by these orders the Father’s FIFO roster may change from time to time, and that he may obtain Perth-based employment in the future.
1.All previous parenting orders be discharged.
2.The Mother and Father have equal shared parental responsibility for [Z].
3.[Z] live with the Mother for the balance of the time not set out in paragraphs 4 to 6 below, during which times [Z] will spend with the Father.
Spend Time Arrangement
4.[Z] is to spend time with the Father as follows:
(a)if he flies in on a Tuesday, from after school on a Wednesday to the commencement of school on the Monday, unless he is rostered to return to work earlier than the Monday;
(b)if he flies in on a Wednesday, from after school on a Thursday to the commencement of school on the Tuesday, unless he is rostered to return to work earlier than the Tuesday;
(c)if he flies in on a Thursday, from after school on the Friday until the commencement of school on the Wednesday, unless he is rostered to return to work earlier than the Wednesday;
(d)if he flies in on a Friday, from after school on the Friday until the commencement of school on the Thursday, unless he is rostered to return to work earlier than the Thursday;
(e)if he flies in on a Saturday, from 3:00pm on the Saturday until the commencement of school on the Friday, unless he is rostered to return to work earlier than the Friday;
(f)if he flies in on a Sunday, from 3:00pm on the Sunday until 6.00pm on the Saturday, unless he is rostered to return to work earlier than the Saturday;
(g)if he flies in on a Monday, from after school on the Tuesday until 6:00pm on the Sunday, unless he is rostered to return to work earlier than the Sunday; and
(h)in the event the Father is rostered to return to work earlier than the day specified above, the time he spends with [Z] will be until 9:00am the day before he is rostered to return to work.
Perth-based Role
5.If the Father is employed in a Perth-based role with a normal working week, [Z] is to spend time with the Father:
(a)each alternate weekend from 6:00pm on Friday until 6:00pm Sunday; and
(b)on two additional nights to be nominated by him, in the week he is not spending time with [Z], in the event is not rostered to work.
6.If the Father is employed in a Perth-based role on a roster system, [Z] spend time with him in accordance with the above paragraph 4, from the day after he is rostered off to the day before he is rostered on to work.
Handover
7.Handover which does not occur at school, such as on weekends, school holidays or public holidays, occur at the Mother’s residence, with the Father to collect [Z] from the Mother’s residence at the commencement of his time and return [Z] to the Mother’s residence at the conclusion of his time.
Roster changes
8.In the event that the Father’s roster changes so that he is in Perth for two or more consecutive weeks, the time [Z] spends with him pursuant to the above paragraphs take place on each of the weeks that he is rostered to be in Perth, with the commencement of time in the second and subsequent weeks to be on the same day and time as the commencement of time in the first week he has returned to Perth.
9.The Father will provide updated rosters to the Mother from time to time and notify the Mother within 7 days of any change to his roster.
Special Occasions
10.Notwithstanding any other orders, [Z] spend time with the Father as follows, provided the Father has rostered time off, or is on leave from his employment:
(a)during the WA gazetted terms 1, 2 and 3 school holidays for a further 7 nights;
(b)during the WA gazetted term 4 school holidays, for a further 14 nights;
(c)In 2020 and each alternate year thereafter from 4:00pm on Christmas Eve to 4:00pm on 27 December;
(d)During the Father’s Day weekend, from the conclusion of school on Friday to the commencement of school on Monday;
(e)On the Father’s birthday, with the Father from the conclusion of school (or 4:00pm if the Father’s birthday falls on a non-school day) to the commencement of school the following day, (or 10:00am if it falls on a non-school day);
(f)In 2021 and each alternate year thereafter for [Z’s] birthday from 4:00pm [the day prior] to 4:00pm [the day after Z’s birthday];
(g)On one further occasion each calendar year for a period of up to 10 nights for the purposes of a state or interstate holiday; and
(h)At such other times as agreed between the parties from time to time.
11.In the event that the Father has leave from work and wishes to spend time with [Z] pursuant to the preceding order, he is to provide notice in writing to the mother not less than 30 days’ prior to the commencement of the school holidays.
Communication between the parties
12.The Mother be at liberty to change [Z’s] place of residence within the Perth Metropolitan Area, provided that she provides the Father 30 days’ notice of the change.
13.The parties ensure that [Z] completes primary school at [Suburb B] Primary School.
14.The mother be permitted to enrol [Z] at a high school in the [Suburb B] catchment area and provide the Father with 30 days’ notice of her chosen high school.
15.The mother be at liberty to change [Z’s] high school within the [Suburb B] catchment area, provided that she provides the Father 30 days’ notice of the change.
16.The parties shall communicate in relation to all issues relating to [Z’s] welfare as follows:
(a)in relation to day to day issues relating to [Z’s] care and welfare via email, with both parties to be responsible for the cost of maintaining their respective accounts;
(b)in relation to handover issues, by text message; and
(c)in relation to a medical emergency affecting [Z], by telephone call.
Communication with [Z]
17.The Mother shall facilitate telephone contact between [Z] and the Father each Tuesday and Saturday when [Z] is not in his care, pursuant to these Orders.
18.For the purposes of the immediately preceding Order, the following shall apply:
(a)the Father shall initiate the calls;
(b)the calls shall take place between 6:00pm and 7:00pm;
(c)the calls shall not be longer than 20 minutes in duration;
(d)the Mother shall do all things and acts necessary to ensure that her mobile phone is switched on and charged during the times referred to in these Orders;
19.On a without admission as to need basis, the Mother shall be restrained by an injunction and an injunction is hereby granted restraining the Mother from monitoring, interrupting or otherwise interfering with the Father’s telephone communications with [Z].
20.If telephone contact is not facilitated pursuant to these Orders, the Mother shall facilitate make-up telephone contact as soon as practicable.
Schooling
21.The parties be at liberty to attend any school events to which parents are ordinarily invited to attend.
22.The parties do all acts and things necessary to ensure both parties are at liberty to obtain copies of all school reports, circulars etc. from any school at which [Z] attends from time to time.
23.The parties be restrained by an injunction from removing [Z] from any school at which she attends from time to time without the consent of the other party.
24.The parties be at liberty to provide a copy of these Orders to any school that [Z] attends from to time.
25.As far as practicable, the Father shall bring [Z] to any school events pursuant to these Orders such as carnivals and concerts while [Z] is in his care.
Medical
26.The parties shall each keep the other party informed in relation to any serious health issues affecting [Z] while in their care.
27.Save and except for in the event of an emergency:
(a)the Mother shall provide the Father with no less than 48 hours’ notice of any medical appointments for [Z];
(b)the Father shall have the opportunity to object to the Mother taking [Z] to any particular medical appointment; and
(c)the Mother shall be restrained by injunction from commencing any treatment for [Z] without prior written consent from the Father.
28.In the event that the Father objects to the Mother taking [Z] to any particular medical appointment, the parties shall consult [Z’s] treating medical practitioner at [Suburb B Clinic] and comply with their reasonable recommendations in relation to whether the proposed medical appointment is necessary and appropriate.
29.The parties shall each authorise and direct any medical, dental and psychological practitioners treating [Z] to provide them with any information reasonably requested in relation to their treatment.
30.If [Z’s] treating medical practitioner recommends that she attend upon an immunologist or gastroenterologist, the parties do all things and acts and sign all documents necessary at their joint cost to attend with [Z] upon the relevant specialist at or as recommended by a medical practitioner at [Hospital A].
31.The parties be at liberty to provide a copy of these Orders to any hospital or other medical practitioner that [Z] attends from time to time.
32.Save and except in the event of an emergency requiring urgent medical attention and unless otherwise agreed in writing, the parties be restrained by an injunction from taking [Z] to a medical practitioner other than at [Suburb B Clinic].
33.The parties give notice of any medical issues, investigations or other ongoing health issues affecting [Z] as soon as practicable.
Injunctions
34.The parties be restrained by injunction, and an injunction be granted restraining each of them from:
(a)discussing with [Z] any planned activities which are scheduled to occur during her time with the other party, without the other party’s consent; and
(b)denigrating the other party or member of the other party’s family in the presence or within hearing of [Z] and the parties shall take all reasonable steps necessary to ensure that no other person denigrates the other party or members of the other party’s family in the presence or within hearing of [Z].
35.In the event that the parties are unable to reach agreement in relation to a major long-term issue affecting [Z] or parenting arrangements pursuant to these Orders, the parents must attend (in person or by telephone) upon an agreed, appropriately qualified Family Dispute Resolution Practitioner or Counsellor in an attempt to resolve those issues without recourse to further litigation.
36.The Application and Response be dismissed, together with all other outstanding interim applications.
37.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.
38.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.
39.In the event of an appeal being lodged prior to the expiration period of 42 days, paragraphs 37 and 38 above do not apply.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
CD
Secretary
9 NOVEMBER 2020
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