MANE and ASPLEY
[2019] FCWA 118
•31 MAY 2019
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: MANE and ASPLEY [2019] FCWA 118
CORAM: DUNCANSON J
HEARD: 29, 30 October, 1, 2 November 2018, 27, 28, 29 March 2019
DELIVERED : 31 MAY 2019
FILE NO/S: PTW 2344 of 2016
BETWEEN: MR MANE
Applicant
AND
MS ASPLEY
Respondent
Catchwords:
CHILDREN - Where the presumption that it is in the best interests of the child that his parents have equal shared parental responsibility for him does not apply - Where it is nevertheless in the child's best interests to make such an order - Where both parties are competent and caring parents - Where orders are made gradually increasing child's time with the father - Where an order is not made for the child's attendance at private school at this time - Where various other parenting orders are made which are considered to be in the child's bests interests
Legislation:
Evidence Act 1906 (WA) s 50A
Family Court Act 1997 (WA) s 9A, s 66, s 70A
Surveillance Devices Act 1998 (WA) s 5
Category: Reportable
Representation:
Counsel:
| Applicant | : | Ms T Farmer |
| Respondent | : | Self-Represented Litigant |
Solicitors:
| Applicant | : | Lavan Legal |
| Respondent | : | Self-Represented Litigant |
Case(s) referred to in decision(s):
AW v Rayney [2010] WASCA 161
Wilkinson and Asher [2018] FCWA 151
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 Mane & Aspley has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).
1[Mr Mane], the father and [Ms Aspley], the mother are unable to agree about the parenting arrangements for their son [B] who is four years of age.
THE PARENTING ORDERS SOUGHT
2The orders sought by the father are set out in an amended Minute of Proposed Final Orders Sought filed 26 March 2019.
3The orders sought by the mother are set out in a Minute of Proposed Orders filed 26 February 2018.
4The matters in dispute include issues which I summarise as follows:
•whether the parties should have equal shared parental responsibility for B as proposed by the father, or whether the mother should have sole parental responsibility as proposed by her;
•whether B should live with both parties, his time with the father increasing at alternate weekends and mid-week until the commencement of pre-primary in 2020, when the father proposes that B live with him in a two week cycle, in week one – overnight on Tuesday and from Friday to Monday, and in week two – from Tuesday to Friday, a total of seven nights each fortnight. Alternatively whether B should live with the mother and spend time with the father gradually increasing such that when he commences school in early 2020, he spends time with the father from Friday to Sunday in week one and from Thursday to Friday in week two, a total of three nights each fortnight;
•whether B should spend one half of the school holidays at the end of Terms 1, 2 and 3 with the father and two weeks in January in even years, or whether he should spend gradually increasing periods of time until 2022, when he spends a period of seven nights during the holidays with the father and 2023 Christmas holidays when he spends two weeks with the father;
•the time B should spend with each of the parties on his birthday, whether that be in even or odd numbered years;
•whether B should attend [School A] as soon as he is eligible to do so as proposed by the father, or whether he should attend a local public school close to the mother's home;
•whether the parties be at liberty to travel overseas with B as proposed by the mother, or whether the travelling parent must receive written consent for the travel as proposed by the father;
•whether a party must contact the other party if he or she is unable to care for B for more than one overnight, and give the other party the first opportunity to do so during the period;
•the period of notice to be given by a party of his or her nominee to conduct handover, whether that be 24 hours as proposed by the father, or a text message a short time before;
•whether both parties should be able to attend every medical and dental appointment for B as proposed by the father, or whether this should only apply to emergencies and specialist appointments;
•whether each year the father should select a winter and summer sporting team or activity for B, with the mother to ensure B attends while he is in her care;
•whether it is necessary to restrain the mother by injunction from changing B's name or referring to him other than [B L Aspley-Mane] or [B Aspley-Mane] as proposed by the father;
•whether B should have electronic communication with the parent with whom he is not living in the absence of agreement on each day after the fourth night upon giving 12 hours notice as proposed by the father; and
•whether the mother should be solely responsible for applying for a renewal of a passport for B and whether she should hold the passport other than when B travels with the father.
FAMILY BACKGROUND AND SHORT HISTORY
5The father is aged 34 years. He is [a health professional]. The mother is aged 33 years. She is [also a health professional].
6The parties met in January 2013 and commenced a relationship later that year. They were in a relationship until March 2016. They did not live together.
7B was born [in] 2015. B lives with the mother in [Suburb A].
8Also living with the mother at her home in Suburb A are her father, [Mr Aspley Snr] and her elder sons, [Child A] and [Child B]. [Child B's] father is [Mr B], with whom the mother was previously in a relationship. Child B suffers from [a medical condition] and requires significant health care. The maternal grandmother, [Ms C] has lived in the [Country A] since mid-2015.
9The father lives in [Suburb B]. Living with him is his partner, [Ms D] who is 34 years of age. She is [an office administrator]. The paternal grandparents [Mr and Mrs Mane Snr] live in [State A].
10The father was initially unhappy about the mother's pregnancy and did not want to have a child with her.
11The mother deposed her health suffered during the pregnancy as a result of the father's abuse and stress.
12The father deposed to his involvement in caring for B after his birth. The mother deposed to the father's lack of support and his unwillingness to tell others about B's existence.
13The mother deposed she suffered extensive emotional abuse and threats of harm to herself and her family on numerous occasions from the father. The father denied the mother's allegations.
14B has spent time with the father since his birth. The parties disagree about many aspects of parenting B. The father's position is that it is in B's best interests to spend more time with him than the mother is prepared to permit. The mother's position is that B's time with the father should increase gradually in an age appropriate way. The parties are considerably apart as to B's living arrangements and the parenting issues set out above.
15The father commenced these proceedings on 27 April 2016.
THE PARTIES AND THEIR EVIDENCE
The father
16The father was represented by counsel. The father is an intelligent man. He was self-assured and assertive.
17The father is a devoted parent. He wants to be involved in all aspects of B's life, in contrast to his attitude to fatherhood prior to B's birth. At times he lacked insight into the needs of B and those of B's primary carer, for example his position as to kindergarten to which I refer below.
18On occasions in cross-examination when the evidence did not reflect well on the father, his answer was he could not or did not "recall". For example, he said he could not recall if he told the mother he enrolled B at [Kindergarten B]. He did not recall if he provided a copy of the orders to the Kindergarten. He admitted he instructed [School A] to change the enrolment form but he did not recall the mother telling him that she did not want an earlier entry than Year 5 on the form. In cross-examination the father made few concessions. Often he said he could not specifically recall an event or thing until he was shown a relevant document, when he then admitted it. This prolonged the cross-examination. The father suggested he was flexible, but I do not accept that. When asked about some practical difficulties of his proposals, the father's response was that in the future he and the mother would discuss these matters and attempt to reach an agreement. From the father's evidence I think it unlikely he would make many compromises going forward. Some matters which he suggested the parties should discuss are the subject of these proceedings.
19At times the father's behaviour towards the mother has been controlling and coercive, for example the threats he made prior to B's birth, to which I refer below.
20I consider the father endeavoured to give honest evidence but at times he was evasive.
The mother
21The mother was a self-represented litigant. The mother is a devoted parent to B.
22The mother was well prepared and although her cross‑examination of the father was lengthy, it was relevant and mostly productive. She held her ground when cross-examining him and displayed determination in doing so. Her questions were direct.
23It was suggested to the mother that she was not the victim of family violence perpetrated by the father. The mother maintained her position that the father was manipulative, threatening and controlling. The mother found the father's behaviour difficult to deal with, but she too was capable of being manipulative. To an extent the mother set up the father in the recordings to which I refer below. At times the mother's statements and actions were inconsistent with her stated fear of the father. I accept at times she was intimidated by him, but at others she too was inflexible.
24Both parties referred to messages and emails between them during their relationship, many of which were annexed to their affidavits. Both were selective in those to which they referred. In at least one instance, the correspondence annexed by the mother was incomplete and misleading. For example, Annexure D to her trial affidavit filed 3 April 2018, is a copy of a WhatsApp message/conversation about money transfers. This is clearly incomplete as the father annexed to his responding affidavit filed 9 April 2018, at Annexure D, the full transcript of the messages.
25When cross-examined by the father's counsel the mother was mostly direct and honest.
Ms D
26Ms D has been involved in B's care and B spends time with her when he is with the father. She looked after B for a day when the father was away. Ms D deposed to B's activities in the father's care and that he was happy when he spent three consecutive nights with the father on two occasions.
27Ms D described the father as well considered, but opinionated.
28Ms D is pleasant and a good person for B to spend time with. I consider her evidence as to the father's attributes as a parent to be reliable.
Mrs Mane Snr
29Mrs Mane Snr is [retired]. Mrs Mane Snr deposed to having electronic communication with the father each week when B is with him. She and her husband have spent time with B in Perth and in State A. Mrs Mane Snr has observed B to be happy, active and well settled in the father's care. She deposed that the father and B have a close and loving relationship. Mrs Mane Snr hopes to maintain her good relationship with the mother.
30Mrs Mane Snr was at times a little hesitant in cross-examination and careful not to say the wrong thing. She was supportive of the father. Her evidence was mostly reliable.
Mr E
31[Mr E] is [also a health professional]. He has known the father for many years and they are work colleagues. He spends time with B when B is with the father. He described the father as caring and attentive. Mr E was supportive of the father and gave some evidence about his working hours.
Ms C
32Ms C moved to Country A a short time after B's birth. She has spent some time with B and they speak on FaceTime.
33Ms C deposed that the mother had informed her that the father had threatened the mother and verbally and emotionally abused her on a daily basis. She described the father as "a poor excuse for a man".
34On 23 March 2016, Ms C sent an email to the father in scathing terms. She said the mother finds the father intimidating and is frightened of him. She described the father as manipulative. The last paragraph of her email to the father read as follows (errors in original):
I have been worried for my daughters life. However you don't scare or frighten me, and know that [Ms Aspley] does have support. We her family have seen the nastiest person in you, as have her friends. If anything should happen to her, you will be the first person I have the police looking at.
35The maternal grandmother has strong negative views about the father. These are based on what the mother has told her and to an extent her personal knowledge. She was extensively cross-examined. Her evidence was mostly consistent with that of the mother.
Mr Aspley Snr
36Mr Aspley Snr is retired. He has facilitated handovers. I refer below to the circumstances of an unpleasant handover which occurred in July 2017 between the father and Mr Aspley Snr.
37Mr Aspley Snr said he did not like the father and had never liked him. He described him as pedantic. He also described the father as clinical with no warmth.
38Mr Aspley Snr has a very close relationship with B and is actively involved in his care.
39Mr Aspley Snr was critical of the father and in particular his restriction on the mother's travel and his inflexible and controlling conduct. However, he described his communication with the father now as fairly cordial.
40Mr Aspley Snr has a highly negative view of the father but he is prepared to facilitate handovers in the future, as the mother's nominee.
Ms F
41[Ms F] is a friend of the mother. When the mother was pregnant, the mother told her of the stress in her relationship with the father and Ms F described the mother as "always down and stressed and worried about the future of her pregnancy".
42When the mother was pregnant, she and the father travelled to [Country B] for a holiday. Prior to that the mother and Ms F discussed the mother's concern that the father might harm her or the baby. At Ms F's request the mother wrote a letter outlining her worries in relation to the father's behaviour and threats. She provided that letter and a USB with voice recordings to Ms F. The letter reads as follows:
31/1/15
Dear [Ms F],
I am writing this letter to you for safe-keeping should anything happen to me when I travel to [Country B] in February with [Mr Mane].
As you know, [Mr Mane] has been constantly threatening me since I found out I was pregnant and recently has made multiple comments about 'accidents' or unfortunate things happening to me and/or my baby whilst we are away.
He says every day that he hopes for something terrible to happen to my baby, even if that means to me as well.
I've also enclosed a USB with voice recordings of some threats he made towards me so that there is a copy if need be.
[Ms Aspley] J
43Ms F no longer has the original of the letter and does not know of its whereabouts or that of the USB. Ms F has a negative view of the father largely based on what the mother had told her. I consider she was an honest witness whose evidence was reliable.
Mr B Snr
44[Mr B Snr] is the paternal grandfather of Child B. His son Mr B, is Child B's father. He said the mother has not told him a great deal about the father. He spoke well of the mother. He expressed surprise at the suggestion that Mr B had behaved abusively towards the mother.
45Mr B Snr confirmed that the mother used his address in [Suburb C] when enrolling Child A and Child B at [School D]. He described the mother as a loving mother who has worked hard to give her children a good upbringing. Mr B Snr was an honest and measured witness.
The recordings
46The mother recorded conversations between herself and the father. These recordings were transferred onto a USB upon which the mother relied.
47The mother also sought to rely on transcripts of the recordings which were Annexure E to her trial affidavit.
48The mother deposed she suffered extensive emotional abuse and threats of harm to herself and her family on numerous occasions. She deposed that, fearful for her safety, she made recordings of some of those threats and transcribed two of the recordings.
49The father denied threatening to harm the mother, her friends, or family. He denied saying "God Help you" in response to the mother trying to involve him in the child's life in any way. He denied forbidding the mother to tell anyone about the pregnancy.
50The father deposed there were missing parts of the conversations which had not been transcribed, or the recordings had been edited or cut. He deposed the mother asked him questions in order to achieve an answer which she wanted to hear him say and record. He deposed the conversations were led and instigated by the mother who referred to hypothetical situations and was selective of the questions she asked. He further deposed some conversations took place in the early hours of the morning at times when he was upset and confused and on at least one occasion he had consumed alcohol.
51Counsel for the father submitted that the transcripts set out at Annexure E to the mother's trial affidavit did not comply with s 50A of the Evidence Act 1906 (WA) ("the Evidence Act") which provides:
50A. Transcripts, proof of
(1)A document consisting of a transcript of a recording that is admitted in evidence in any proceedings is admissible in those proceedings as evidence of the contents of the recording if the transcript bears a certificate that purports to be signed by the person who transcribed the recording and meets the requirements of subsection (2).
(2)A certificate under subsection (1) must -
(a)state the full name, address and occupation of the certifier; and
(b)identify the recording to which the transcript refers; and
(c)state the day upon which the certifier made the transcript, the condition of the recording at that time, the extent of any damage to the recording and the extent and nature of any difficulty encountered by the certifier in making an accurate and complete transcription of the contents of the recording; and
(d)certify that the transcript has been made in good faith and is an accurate and complete transcription of the contents of the recording, except as stated under paragraph (c); and
(e)if the certifier was authorised under the Surveillance Devices Act 1998 to listen to the recording to which the transcript relates, state the details of that authorisation.
52The transcripts clearly did not comply with that section and therefore required to be struck out.
53The father sought to rely on a transcript of an audio recording which he made of an incident involving the paternal grandfather at handover in July 2017. The transcript was Annexure R to his responding affidavit. This transcript too did not comply with s 50A of the Evidence Act and also required to be struck out.
54I ordered that the transcripts of both parties be removed from their affidavits and be returned to them. Copies of the transcripts were kept in a sealed envelope on the Court file. I have disregarded those transcripts in determining this matter.
55Counsel for the father submitted the recordings on which the mother sought to rely were made in breach of s 5 of the Surveillance Devices Act 1998 (WA) ("the Surveillance Devices Act").
56Section 5 of the Surveillance Devices Act provides as follows:
Regulation of use, installation and maintenance of listening devices
(1)Subject to subsections (2) and (3), a person shall not install, use, or maintain, or cause to be installed, used, or maintained, a listening device —
(a)to record, monitor, or listen to a private conversation to which that person is not a party; or
(b)to record a private conversation to which that person is a party.
Penalty:
(a)for an individual: $5 000 or imprisonment for 12 months, or both;
(b)for a body corporate: $50 000.
(2)Subsection (1) does not apply to —
(a)the installation, use, or maintenance of a listening device in accordance with a listening device warrant issued under Part 4;
(b)the installation, use, or maintenance of a listening device in accordance with an emergency authorisation issued under Part 4;
(c)the installation, use, or maintenance of a listening device in accordance with a law of the Commonwealth;
(d)the use of a listening device in accordance with Part 5; or
(e)the use of a listening device resulting in the unintentional hearing of a private conversation.
(3)Subsection (1)(b) does not apply to the installation, use, or maintenance of a listening device by or on behalf of a person who is a party to a private conversation if -
(a)that installation, use or maintenance is carried out in the course of that person’s duty as a law enforcement officer;
(b)that installation, use or maintenance is carried out by that person as instructed or authorised by a law enforcement officer in the course of an investigation into a suspected criminal offence;
(c)each principal party to the private conversation consents expressly or impliedly to that installation, use, or maintenance; or
(d)a principal party to the private conversation consents expressly or impliedly to that installation, use, or maintenance and the installation, use, or maintenance is reasonably necessary for the protection of the lawful interests of that principal party.
57It was necessary to determine whether the recordings fall within the exception in s 5(3)(d) of the Surveillance Devices Act. I found that they did and I permitted the mother to rely on them. My reasons are set out below.
58Counsel for the father submitted there were no lawful interests to be protected and the exception was not made out. Counsel referred to the father's evidence as set out at [50] above. Counsel said the father was not aware that the recordings were being made.
59The mother said the father made threats to her and her family daily and this conduct was relevant in particular to the father's application for equal shared parental responsibility. The mother said she feared for her life and the threats were made behind closed doors. Consequently she said the recordings were reasonably necessary for the protection of her lawful interests.
60The mother was a principal party to the private conversation. She clearly consented to the use of the listening device as it was she who made the recordings. The question was whether they were reasonably necessary for the protection of her lawful interests.
61The construction of s 5(3)(d) was considered in AW v Rayney [2010] WASCA 161 [257] where Buss JA (McLure P agreeing) said:
(a)the word 'necessary' connotes, in the context of s 5 'appropriate or adapted' rather than 'essential or indispensable'.
(b)The word 'reasonably' imports an objective test. That is, the installation, use or maintenance of the listening device must, objectively, be reasonably appropriate or adapted.
(c)The determination of whether something is 'reasonably necessary' involves the exercise of judgmental evaluation.
(d)The determination of whether the use of a listening device is 'reasonably necessary' is to be undertaken by reference to the facts and circumstances, and upon the bases or grounds, existing at the time of the recording.
(e)The word 'protection', in the context of s 5, connotes defending preserving or safeguarding the lawful interests of the principal party in question.
(f)What constitutes a person's 'lawful' interests must be ascertained from the facts and circumstances of the particular case. It may be said generally, however that the word 'lawful' connotes, in the context of s 5, a right or interest which is not contrary to statue or general law. (authorities omitted)
62As Buss JA said, whether the use of a listening device is reasonably necessary depends on the facts. The determination of the ''lawful interests" of a principal party to a private conversation also depends on the facts.
63I found the recordings were reasonably necessary for the protection of the lawful interests of the mother. Her case is that the father's conduct was intimidating and threatening and that this occurred behind closed doors. The father denies family violence. Determining the issue of family violence is highly relevant in these proceedings which concern the best interests of B, although it is not the test in determining whether the recordings fall within the exception. The safety of the mother and child is a matter which falls within the protection of the mother's lawful interests. I therefore found that the exception in s 5(3)(d) was made out.
64Even if I had found that the recordings were made illegally, that would not have rendered them inadmissible in these proceedings. I respectfully agree with O'Brien J's reasoning in Wilkinson and Asher [2018] FCWA 151, where at [21] he said:
In summary, it is a matter of discretion as to whether evidence obtained illegally is to be nevertheless admitted. That involves a weighing up of the probative value of the evidence in determining the matters in issue in the proceedings against the negative aspect of the method by which it was obtained and the reluctance of the court to encourage or tacitly approve of the gathering of evidence by illegal means.
65Counsel for the father submitted that the recordings had no probative value in circumstances where the father acknowledged he was less than enthusiastic about the mother being pregnant and he conceded he did some inappropriate things at the time. Counsel submitted I should also take into account the "floodgates argument" and the making of illegal recordings should be discouraged.
66Counsel for the father submitted that the recordings were incomplete, they had been edited and were not produced in their entirety.
67The mother disagreed and said that they had not been edited. This issue is one which goes to weight and not to admissibility.
68When I balanced the probative value of the evidence in determining important issues in these proceedings, including that of family violence against the way in which the evidence was obtained, I was satisfied that in my discretion the evidence should be admitted.
69The recordings which were made in December 2014 or January 2015 contain discussions between the parties about their future plans once B was born. I have summarised parts of them below.
70The father said he would have nothing to do with the child in any way, shape or form. He described it as the most traumatic thing that had ever happened.
71The mother suggested to the father that the Child Support Agency might chase him and the father said if they went their separate ways and she tried to involve him in any way, he would make it as drawn out as possible, as difficult as possible, take as much energy as humanly possible and would fight it at every single turn. The mother asked the father why he was so nasty and he said he did not want the child.
72Again in the context of child support, the father said:
If we go our separate ways and you try and involve me in any way, shape or form, God help you. God help you. God help you. And everything you enjoy in life, God help you. This has been the worst thing ever for me and if you try and prolong that in any way whatsoever God help you.
73The mother then pressed the father to say what he meant and the father told her to imagine the worst things possible happening in her life and said he would devote everything, even if it sacrifices his own life and happiness, to get retribution.
74The father repeated he would have nothing to do with the child. He said to the mother he would come at her with everything, even if it was to his own detriment. He said he would not speculate what that would involve, or how he would do that.
75The mother then said "…God knows what you're talking about. For all I know you could be talking about coming and slitting my throat and God knows what else." The father told the mother to just imagine absolute misery.
76The mother then asked from what he was saying, "You're quite happy to what? Come slaughter me and my family?" The father replied that he did not say that.
77The mother said the father knew that the worst possible thing she could imagine would be something happening to her children.
78In this first recording the father threatened the mother although he did not specify what he would do. It was the mother who suggested he might slit her throat, slaughter her family or that something would happen to her children. The father did not explain what his threat was and did not suggest any physical harm to the mother and her family.
79In the second recording the parties discussed the involvement of the father's family in the child's life. The father said it was his choice if his parents have anything to do with the child. The father said "won’t be my child [Ms Aspley]. That’s what you said. It’s just genes." The father said if the mother contacts his parents it would be "bad". The mother pressed him to explain what he meant by that and she said "like what?" The father then said "if you try and do that, I'm scared to think of what I will be capable of doing". The mother asked what he meant and he said "I'm scared of what kind of retribution that I will seek for that." The mother then said "you’ll come and slit my throat?" The father replied he had never thought about it and did not want to think about it. The mother said she would like to know. The father then said "just don't go there".
80In this second recording the father's statements are clearly threatening, but again the threat is not specified. The mother introduced the possibility of physical harm, not the father.
81In the third recording the father said, "If we make a clean break and you try and involve me afterwards in any way, shape or form, either directly or indirectly, and I have no reason to hold fire, just for everyone’s sake, literally everyone’s sake. Don’t do it. For everybody's sake". The mother pressed him to explain what he meant. The father said "I will channel everything into retribution for that. Everything. Every resource, every bit of energy I have".
82In the third recording the conversation was driven by the mother. As in the previous recordings she kept the conversation going, presumably because she was recording it.
83I asked the mother what was in her mind when she decided to record the conversations. She said the father had always been very careful about what he put in writing and he said things behind closed doors. The mother said there was no proof of the things he said to her, or his conduct towards her and he had denied his behaviour. The mother said no one would believe her and she would not be able to prove it. She was unsure as to her intention. The mother said she recorded the conversations in case anything happened and she needed to get a restraining order. At the same time the mother said she hoped the relationship would work.
84I asked the mother what was in her mind when she referred to the father slitting her throat. I said it could look as if she was putting words into the father's mouth knowing she was recording. The mother said she was definitely not trying to put words into his mouth, but wanted an "informed decision" on what he was thinking of doing to her. She said that was what "popped into her head" when she thought of the worst things happening to her. The mother confirmed that the relationship between her and the father continued for a period of 10 months after the recordings were made.
85Important matters in relation to which the parties were cross‑examined include those referred to below.
The parties' relationship
86The parties did not live together and the father described their relationship as "on-off".
87In September 2014 the mother discovered she was pregnant with B. The father was unhappy about the pregnancy and he deposed to subsequently being ashamed of some of his reactions. The father did not want a child with the mother and told her this. The mother deposed that when she refused the father's request that she have an abortion, the father became "nasty, threatening and more abusive" throughout her pregnancy and after B's birth.
88The mother deposed that the father forced her to disclose personal information which she did not feel comfortable discussing with him. She deposed that the father accused her of cheating and lying and expected her to justify her time and her conversations with any males. The mother referred to various WhatsApp messages in 2014 to demonstrate this. The father admitted he was suspicious of whether the mother was seeing other people, but said she instigated messages informing him that she had come across a male who she had been sexually or romantically involved with. The father said the mother was highly suspicious of him spending time with females. Both complained of similar behaviours by the other in this respect.
89The father deposed that the parties had their "good moments". The father said he was supportive and the parties were affectionate towards each other and he made an effort with the mother's sons. The father referred to messages which are affectionate and which express the mother's gratitude for the father's help and her love. These messages occurred between September 2014 and April 2015. For example the father referred to a message from the mother to him dated July 2014 setting out 10 things she loved about him.
90It is clear that both parties have annexed messages to their affidavits which support their case.
91I refer above to the recordings of the parties' conversations while the mother was pregnant. In those recordings the father's threats were intended to coerce the mother into not involving him or his parents in B's life, or involving the Child Support Agency. However it was the mother who introduced the possibility of physical harm to her and her children. She chose to protect herself by making the recordings and although that might suggest she was not afraid, I accept that at the time the recordings were made, the father's threats caused the mother to be fearful.
92This is consistent with what the mother told the maternal grandmother and Ms F, which was that she was afraid the father would harm her or her unborn child. Notwithstanding those fears the mother went on holiday to Country B with the father when she was pregnant. It was firmly put to the mother that she had a choice whether to go to Country B with the father and in choosing to go she was not fearful of him. The mother denied that.
93The mother's position as to whether the father was welcome at the birth of B was not entirely clear. The father said he was invited to attend and the mother was happy for him to be in the birthing suite. The mother said she invited him to the hospital, but did not want him in the birthing suite. Ms F, who was there said the father was not welcome in the birthing suite. The father felt unwelcome and left the hospital. Text messages between the parties after B's birth suggest that the mother was unhappy with the father for leaving the hospital and she asked him to return.
94The mother was asked about a meeting she had with a mental health liaison nurse on 7 May 2015. The nurse's record referred to the current issue being the baby's father and the mother reporting that he had been manipulative and threating at times towards her. The record noted that the mother denied any concerns for her safety, but felt the father would be problematic towards access and contact to the baby.
95The mother disagreed that her denial of any concerns for her safety related to the father. She said it was open to interpretation. I do not accept the mother's evidence in this respect.
96The mother deposed that after B's birth, the father wanted to be involved in his life, which she facilitated. She deposed to a lack of financial support, although she acknowledged the father assisted to an extent with the baby.
97In contrast the father deposed he was very much involved in the care of B and that the mother regularly left B in his care. The mother expressed to the father in messages that he was a good father. In messages between the parties, they spoke of their love for B. In messages sent between April 2015 and February 2016, the mother thanked the father for things that he had done.
98In June 2015 the mother messaged the father saying she wanted them to be on the same team and to play equally important parts in B's life. In December 2015 she messaged saying that she loved coming home to the father. As late as 21 February 2016, by message the mother told the father she loved him and thanked him for taking such good care of B.
99The mother relied on messages which show a poor relationship between the parties. The father relied on messages which show the positive aspects of their relationship.
100The father deposed that it was not until March 2016 that the mother first said she was afraid of him. This occurred after the mother left a recording device in the father's home in early March 2016 for an unknown period of time. The mother recorded a phone call the father had with another woman and he said she was angry about this. The father complained to the police who subsequently attended the mother’s home and executed a search warrant.
101The mother deposed that the parties only communicate via email or text messages apart from an occasional few words at handover. She said they are unable to communicate effectively and there is a complete lack of ability to resolve issues. The mother said given the father's history of threats, bullying and intimidation particularly when it has concerned important decisions concerning B, such as financial support, schooling and his passport, she did not believe it would be in B's best interests for the parties to share parental responsibility.
102In contrast the father deposed that the parties have continued to communicate electronically regarding the care and wellbeing of B and he referred to a number of messages and emails between the parties. Although the parties do not agree on various issues, the communication he referred to appears to be reasonably courteous.
103It was squarely put to the mother that she was not a victim of family violence. However the mother said she had been abused by the father for three years and she feels sick to look at him.
104I asked the mother if she feared the father would harm her or her children. She said from time to time she had thought it would not surprise her if one day he did something, but currently she did not think he would physically harm B.
B's attendance at kindergarten
105The issue of the kindergarten to be attended by B was resolved by consent during the course of the first part of the trial. I refer below to events leading up to B's attendance at kindergarten because the father's position in this respect demonstrates his lack of flexibility and a lack of insight into the needs of B and his primary carer.
106B commenced kindergarten in 2019. The mother proposed he attend [Kindergarten C] which is a short distance from her home. She sought the father's agreement to B's enrolment there. The father said he was not opposed to B attending kindergarten, although it was not compulsory. He inspected Kindergarten C and was of the view that the facilities were inferior to another kindergarten. He wanted to have a discussion with the mother about kindergarten. Knowing B had been enrolled at Kindergarten C, the father submitted an enrolment form to [Kindergarten B] so it was an option. When asked if he told the mother about that, he said he did not recall. I accept the mother's evidence that at the time of enrolment the father did not tell her that he enrolled B at Kindergarten B.
107Kindergarten B is close to where the father lives whereas Kindergarten C is just 400 to 500 metres from the mother's home. The mother wanted B to attend there along with children from her neighbourhood so he could easily have play dates with other children living locally.
108Kindergarten C is convenient to the mother and if she is unable to collect B from kindergarten, other family members are able to do so with ease. Kindergarten B is close to the father's home but around a 30 minute drive from the mother's home. B's attendance at Kindergarten B would require the mother to do a round trip of approximately one hour, twice a day. Kindergarten occurs on five days each fortnight.
109The mother put to the father that he would take B to kindergarten perhaps once a fortnight whereas she would have to do eight, one hour round trips each fortnight for his attendance at Kindergarten B. In response the father said they should discuss their options.
110The mother was critical of the father's completion of the enrolment documents. She suggested he had not told Kindergarten B that B lived primarily with her in Suburb A. The father said he told Kindergarten B that B lived with him on Wednesdays and alternate weekends, but he did not recall if he gave the kindergarten the orders containing the living arrangements. He noted himself as the first person to be contacted in an emergency and the mother as the secondary person. The father noted an additional contact person as Ms D, rather than the paternal grandfather who lives with B. The father noted himself as B's health professional, but he is not a general practitioner and he agreed that in the longer term he should not be B's general practitioner.
111The mother is a single parent with two other children who have sporting events and friends. The convenience to her of the kindergarten close to her home was obvious.
112On 2 November 2018, an order was made that B attend Kindergarten C. This order was made by consent and the spend time orders were changed to take account of B attending every Wednesday such that B instead spends every Monday during the day with the father.
School A and extracurricular activities
113The father proposes that B attend School A when he commences formal schooling in 2020. The mother does not agree to B attending School A.
114The parties submitted an application to enrol B at School A, for Year 5, to keep their options open. It was put to the father by the mother that he suggested he would stop transferring money if she did not agree to B attending School A, but he denied this. Subsequently the father had a conversation with the school as a consequence of which Years 1 and 3 were added to the application. When asked about this, the father said he could not recall the circumstances.
115On 14 March 2017, an order was made without prejudice to the mother's position that B should not attend School A and noting that the question as to the school B was to attend would be determined at trial, in the absence of any written agreement in advance between the parties, the parties sign all documents necessary to have B's name included as a potential student to attend School A in 2020 at the father's costs.
116On 22 June 2018, a place was offered to B for pre-primary in 2020. The father accepted the offer and paid the enrolment fee. The mother has not submitted a signed acceptance. She said she had spoken to the school which had offered an extension of time and would keep the offer open until the Court has made a decision. This is consistent with the terms of the letter from School A to the father dated 13 September 2018.
117The mother said B's attendance at School A would require her to do two, one hour round trips per day, that is approximately half an hour from home to School A, parking and dropping B off and then about half an hour home. In the morning this would be in peak hour. Exhibit 5 was extracts from Google Maps showing the distance between the mother's home and School A as 24 minutes and 16 kilometres. Annexure AA to the father's trial affidavit, filed 14 March 2018 shows it as 18 minutes and 16 kilometres. The father's Google Map is taken at 8.38 pm in the evening, when it unlikely the mother would be travelling to and from School A. The father did not agree that the mother's journey was about 30 minutes, or that it was unreasonable to expect her as a mother of three, to undertake these journeys. He said the maternal grandfather was available to assist her and the positives of School A outweigh the "extra bit of time every day in the car". The mother pointed out that in the past the father has endeavoured to avoid B having to sit in the car in peak hour traffic.
118The father is prepared to meet the costs of School A that are compulsory.
119The father's lawyers sent a draft binding child support agreement to the mother on 22 March 2018. The mother confirmed that she understood the father's proposal to be that in addition to the assessed amount of child support, he would pay non-periodic amounts by way of child support as set out below:
2.2.1The Father pay by way of child support all costs to meet school fees and levies for the Child's education in accordance with accounts issued by [School A] or any other private school that the Parties agree for the Child to attend as follows:
(a)All invoices rendered (excluding charges for extracurricular activities and excursions that are not compulsory and that are not consented to by both parties);
(b)Compulsory school excursions and camps which the Father and Mother agree that the Child undertakes;
(c)Any attendance fees for compulsory school functions;
(d)Uniform expenses with the Father to purchase items subject to clause 2.1.2; and
(e)All educational stationary and equipment, including books and electronic devices specified in the Child's school's book list for each school year with the Father to purchase subject to clause 2.1.2.
2.1.2In the event the child's uniforms and/or educational stationery and equipment and all items purchased by the Father pursuant to clauses 2.1.1(b) and 2.1.1(e) are damaged, lost or stolen whilst in the Mother's home or during periods when the Child is not in the care of the Father, the Mother shall meet the costs of replacement.
2.2.3In the event the Mother purchases any educational items for the Child, the Mother is responsible for meeting the costs of same including any uniforms or educational stationary and equipment.
120It was put to the mother that after the father made the payments referred to above, there would not be a lot left to pay. The mother disagreed and said there would be non-compulsory items which would have to be paid.
121In cross-examination, the mother asked the father if he was prepared to meet associated costs of uniforms, books, insurances, excursions, extracurricular courses and activities, P&F Association fees, computers, camps, levies, specialist programs, music equipment, fundraising support and fee increases. In reply the father said they would have a discussion about it and decide at the time. The mother was not optimistic about that and said she did not want B to be left out, for example from an expensive [school] trip.
122As to his future plans the father said he did want other children, however he had not discussed with his partner the question of private schools for his other children. He thought School A is a good school although, if there was a coeducational school as good, he would select a coeducational school for B.
123The father has paid a non-refundable endowment fee of $8,100. The mother suggested this would be refunded, although the father said that could not be guaranteed.
124The mother is opposed to the religious aspect of School A. She wants B to attend a local school where she said he would be exposed to a diverse socioeconomic background of people and would learn to make friends with people from all different backgrounds as opposed to a private school where people are from high socioeconomic backgrounds. The mother was open to considering an alternative school if B was offered a scholarship, but she thought the discussion should involve B even at age 11 years. The mother wants B to have friends in her neighbourhood, go to school with them and spend time with them after school. The mother said the travel is untenable and would impact negatively on her, B and her working commitments.
125The father seeks an order that the parties liaise about extracurricular and sporting activities and that each party is able to attend all events. The father wants to select a winter and a summer sporting activity each year with the mother to ensure B attends while in her care. The father said sport is a passion of his and he has concerns that the mother will "railroad" B into teams in her living area. Once again he said he would discuss this issue with the mother.
126The mother pointed out that her other two children attend clubs in their local area and questioned why B should not play sport in an area near where he lives. In response, the father said that from 2020, he sought equal time with B. The mother was not opposed to the father attending extracurricular activities in which B is enrolled locally.
The parties' working hours
127The father's work is regular, but not permanent. He has some flexibility in his working hours, but also has to give some commitment. The father works Tuesday, Wednesday, Thursday and Friday each week and very occasionally at weekends. He is self-employed and assists [another] health professional . His morning [roster] is usually from 8.00 am to 1.00 pm and the afternoon roster from 1.00 pm to 5.30 pm. He does administrative work at home.
128The mother has two contracts of employment, in terms of which she works three 12 hour shifts per fortnight. On average she would do one extra shift per fortnight. If she is offered shifts in a higher role, she accepts them. She does possibly four 12 hour shifts per fortnight. She said it is a struggle but otherwise she spends time with her children.
129The mother's shifts are either 7.00 am to 7.30 pm or 8.00 am to 8.30 pm. She requests every second Friday or Saturday night shift when B is not in her care. The mother said it would be unusual for her to do a night shift when B is in her care. If she does, the maternal grandfather looks after B. In November or December 2018 the mother said she worked possibly 10 shifts as she did extra shifts to cover someone's leave. In her absence the maternal grandfather looked after B. As at the end of March 2019 the mother had worked 15 shifts this year.
130On occasions the parties have asked each other to change the arrangements to suit them. At times both have been inflexible.
131In her reasons in interim proceedings, [the Magistrate] stated:
As I stated, the father appears to take a very rigid and inflexible attitude to court orders when it comes to the mother. His view is that he expects full compliance with court orders as they’re currently drafted. And he does not hesitate in filing contravention applications if he perceives those orders to have been contravened, even in circumstances where arguably there’s a reasonable excuse.
132The father has filed two contravention applications containing six allegations. The mother was found to have contravened one out of four in one application. The second application did not proceed. The father sought costs. One of the contraventions alleged that the mother did not allow B to communicate with the father while he was overseas. She had given him notice that B was asleep at the time. On a second Facetime call, the father demanded B stay in front of the camera to make-up time for the first one.
133The orders provide that B's time with the father be suspended for two weeks in the holidays at the end of Term 4 as may be agreed by the parties and failing agreement for the first two weeks of January. The parties disagreed as to whether the orders were suspended or not in January 2018. This lead to further disagreement between the parties about make-up time, whether it was required and whether it was given.
Overseas travel
134The mother sought to travel with B to Country A in June 2016. The father signed a passport application for B, but then withdrew his consent. Between about March and September 2016 he withheld his consent to the mother's overseas trip. During this period the father travelled overseas. The mother filed an application to take B overseas which was listed for 25 September 2016, and in early September 2016 the father consented to the trip.
135Just before the mother took B overseas the father took him to the doctor to have his ears checked out. The father was told that although slightly inflamed, they were okay. The father said he just wanted an independent opinion to assess B's ears and it was not an attempt to obstruct the trip.
136The father requires each party to obtain written consent from the other for B to travel overseas and he thinks the passport should change hands within 7 days according to who is travelling. The mother pointed out there could be some crossover of overseas travel if a parent is travelling within three days of the other and this could be a problem.
137The father wants the mother to give him seven days notice of taking B out of the Perth Metropolitan area, but he conceded this should not apply for example, to a trip to [Suburb D] where she has relatives. He had in mind a trip to [Regional Western Australia].
138Both parties should give appropriate notice to the other of interstate and overseas travel.
Handovers
139Paragraph 8 of the orders dated 20 November 2017 provides that in the event either party is unable to personally facilitate handover, they be at liberty to have an agent attend on their behalf subject to them providing no less than 24 hours written notice to the other party of who that agent will be.
140On 21 July 2017 an incident took place between the father and the maternal grandfather at handover. The father recorded this incident. The maternal grandfather tried to hand to the father a document and he wanted a signature. The father refused to accept the document and demanded that the maternal grandfather handover B. The maternal grandfather said he would not do so until the father had read the document.
141The father said he could hear B crying. The mother said B was with her. As a consequence of this incident the father obtained an interim Violence Restraining Order against the maternal grandfather and thereafter orders were made for supervised handovers to occur. The interim VRO was ultimately dismissed. The Magistrate did not find that B was exposed to the incident. The maternal grandfather acknowledged he was resentful about the father obtaining an interim VRO as he believed at the time he behaved appropriately.
142The father is prepared to do handovers with the maternal grandfather, although he would prefer them at his own house where there is CCTV, but if necessary he will do them at both houses.
143Although the maternal grandfather did not accept his behaviour in July 2017 was disproportionate, he said on reflection he would have done it differently. The maternal grandfather has been present at handovers since [the supervision agency] have ceased supervising and there have been no incidents. Handovers are now fairly cordial and there is no indication that there will be any repetition of the maternal grandfather's inappropriate language or behaviour.
144The maternal grandfather said more recently there has been some flexibility and both parties have turned up early and B has been handed over.
145The requirement to give 24 hours notice if a party is unable to personally facilitate a handover remains. The mother said in February 2019 the father had been inflexible about this. She explained she was asked to do an extra shift at short notice. She told the father that the maternal grandfather would do the handover and collect B, but she was only able to give the 21 and a half hours notice. She said the father refused.
146B was to be with the father until Sunday evening. In accordance with the orders he would spend Sunday night with the mother and return to the father's care for the day the following Monday.
147The father suggested that he keep B in his care overnight if the mother had difficulty with handover. The mother said there was not a difficulty, as her father could collect B and she would be home a short time later. The mother agreed that an alternative would have been that she collected B after work, but she said it was already late when he returned on a Sunday evening and a later return would be disruptive for him.
148Text messages went back and forward between the parties. The mother called in another [colleague] to relieve her so she could leave work early and pick up B.
149Clearly the requirement to provide 24 hours notice of who was to conduct handover on this occasion created a difficulty and generated a number of text messages between the parties. I shall take this into account when considering an appropriate order in this respect.
150I shall also take into account that on occasions in December 2018 and January 2019, the mother provided the father with less than 24 hours notice that her father would conduct the handover and on those occasions there was no difficulty.
151The parties agree handovers can take place by each party collecting from the other parties' home at the commencement of their time with B and that their nominee may collect on their behalf. Orders to this effect were made at the conclusion of the part-heard trial on 2 November 2018. The father requires each party to give the other 24 hours notice of his or her nominee to conduct handover. The mother's position is that a text message shortly before handover is sufficient notice. The only person who may not be involved in handovers is the mother's brother, [Mr G].
Financial matters
152The orders dated 7 March 2018 provided that the father meet the costs of the supervision agency in the first instance. After that he asked the mother to pay him either part or all of those costs. In October 2018 the father sought reimbursement from the mother of $4,444. He suggested she use additional child support which she would receive arising from a retrospective assessment. The father considered it reasonable to seek a contribution from the mother.
31Each party is permitted to attend and communicate with the child's day care and school(s) in relation to the child and to obtain all information and copies of documents as reasonably requested at their own expense.
32The parties shall attend mediation in relation to the child’s schooling.
Extracurricular Activities
33The parties shall consult and endeavour to reach agreement as to the child’s enrolment in extracurricular activities.
34Failing agreement, each party be at liberty to enrol the child in any extracurricular activity, but the other party will not be required to take the child to that activity during the child’s time with that party, unless he or she agrees to do so.
35Each party is permitted to liaise with all extracurricular and/or sporting organisations and attend all events in relation to the child.
Name
36Without admission as to need, and by way of injunction, the mother be restrained from changing the child's name or referring to the child's full name other than as [B Aspley-Mane or B L Aspley-Mane].
Procedural orders
37All extant applications be and are hereby dismissed.
38All 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 this order.
39In relation to material tendered as an exhibit into evidence in these proceedings:
(a)all parties must collect the exhibits tendered by them ("their exhibits"), from the chambers of Justice Duncanson, at least 28 days, and no later than 42 days, from today's date;
(b)all parties must contact the chambers of Justice Duncanson to arrange the collection of their exhibits; and
(c)in default of compliance with subparagraph (a), all material tendered as an exhibit, save and except for material produced pursuant to subpoena, will be destroyed by the Court without notice to the parties.
40In the event of an appeal being lodged prior to the expiration period of 42 days, orders 38 and 39 above do not apply.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
RM
Associate31 MAY 2019
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