MERLA and MERLA
[2017] FCWA 164
•29 NOVEMBER 2017
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: MERLA and MERLA [2017] FCWA 164
CORAM: MONCRIEFF J
HEARD: 7, 8, 9, 10, 11 NOVEMBER 2016, 22 FEBRUARY, 7 MARCH, 6 APRIL, 29 JUNE & 12 OCTOBER 2017
DELIVERED : 29 NOVEMBER 2017
FILE NO/S: PTW 1738 of 2015
BETWEEN: MR MERLA
Applicant
AND
MS MERLA
Respondent
Catchwords:
CHILD-RELATED PROCEEDINGS – Where there is a history of dysfunction in the parental capacities of both parties – where the husband asserts that the youngest child has been alienated from his affection by the wife – where each of the parties have significant challenges arising from substance abuse or dependency and in the case of the husband gambling – where the wife has the capacity to recognise the challenges facing her and has been proactive in attempting to address the same – where the husband does not accept that his behaviour has impacted upon his relationship with the youngest child and seeks to lay responsibility upon the wife, the family law system, the Independent Children's Lawyer and the single expert witness – where the parties agree that the two older children should reside with each of them as the child/children may choose – where attempts to re-establish a relationship between the husband and the youngest child failed and where the husband accepts no responsibility for the failure – consideration of parental capacity – orders for equal shared parental responsibility for the two older children and for the wife to have sole parental responsibility for the youngest child – where the husband seeks orders that if the youngest child is not ordered to reside with him that she be placed in foster care – where it is found that such an order would not be in the youngest child's best interests
PROPERTY SETTLEMENT – Where the only asset of substance is superannuation – where the parties are jointly liable for a shortfall arising from the sale of the former matrimonial home – where the parties otherwise have separate debts – where the husband received a redundancy payment post-separation and prioritised payment to a family member – where the husband has previously earned a relatively substantial income – where the husband has failed to discharge arrears of child support – where the husband claims an adjustment in his favour having regard to assets held by him prior to the parties' relationship and the wife's pre-cohabitation debt – where the husband has expended significant sums during the parties' relationship in pursuit of gambling – where the outcome overall is assessed as equal – order for superannuation split to equalise the parties' superannuation entitlements while retaining their separate debts and the husband indemnifying the wife for the joint debt
SPOUSAL MAINTENANCE – Where the issue received little consideration during the course of the trial – where the husband has no identified capacity to pay – application dismissed
ANCILLARY – Where the husband seeks permission of the Court to make complaint about the single expert witness to the Australian Health Practitioner Regulation Agency – where the evidence does not support the application – where the claimed breach of confidentiality involves an individual previously nominated by the husband as a McKenzie friend – where the husband has provided a copy of the single expert's report to the individual and the individual has engaged with the single expert with the knowledge and support of the husband – application dismissed
Legislation:
Family Law Act 1975 (Cth)
Category: Not Reportable
Representation:
Counsel:
Applicant: Self Represented Litigant
Respondent: Self Represented Litigant
Independent Children's Lawyer : [Ms C]
Solicitors:
Applicant: Self Represented Litigant
Respondent: Self Represented Litigant
Independent Children's Lawyer : [Law Firm A]
Case(s) referred to in judgment(s):
Stanford v Stanford (2012) 247 CLR 108
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
1[Mr Merla] (“the husband”) and [Ms Merla] (“the wife”) are the parties to these proceedings relating to future arrangements for their three children and the disposition of financial matters between them.
2In referring to the parties as husband and wife respectively I mean them no disrespect, but do so for the convenience of the reader and to avoid the confusion that can occur when parties are referred to as applicant and respondent, particularly in proceedings where there have been interlocutory orders made on applications by either party or, as is the case here, an Independent Children’s Lawyer.
3The husband and the wife commenced cohabitation in February 2000, married [in] 2000 and separated on a final basis on 17 December 2014.
4There are three children of the marriage; [Child A] born [in] 2000, [Child B] born [in] 2002 and [Child C] born [in] 2005 (collectively referred to as “the children”). At the close of trial the children were aged 16, 15 and 12 years of age respectively.
5For the reasons that appear below, I have limited these reasons in relation to the parenting orders I propose to make to a particular focus on what orders should be made regarding Child C. To provide a long and detailed history of the parties, of their several accusations and complaints each against the other and the history of the challenges that each of them has faced to the extent that they are relevant to the other children, other than as to their relevance to Child C, has become unnecessary and would be potentially damaging, given the position that was presented to me at the close of trial and the very limited determinations I have to make with respect to a minute of proposed orders prepared by the Independent Children’s Lawyer and accepted for filing on 7 March 2017.
6Whilst it is that each of the parties have had to face, to varying degrees of success, various personal challenges which were ventilated during the course of these proceedings, they both presented to me as fundamentally decent people who, notwithstanding the significant challenges they have faced both separately and together, had at their core a genuine desire to be good parents to their children but at times struggled with the execution of that aspiration.
7With respect to the parties, the majority of each of their cases focused singularly upon the negative attributes of the other. The Independent Children’s Lawyer summarised the position thus: (Unless otherwise specified, all errors and emphasis in extracts are as in original).
[C], MS: … when I was preparing for this trial I drew a house, and I called it the glasshouse… So in my glasshouse I put [Ms Merla], attempted suicide… [Mr Merla’s] tried to kill himself. You’ve got problems with addiction issues, he’s got problems with addiction issues. You don’t trust him, he doesn’t trust you, and on it went. And there was just this long list of parallel allegations that each of you was making about one another.
8I agree with the Independent Children’s Lawyer’s observations.
9To traverse through the entirety of the parties’ history and the various allegations made would not necessarily be in the best interests of the children, who remain the focus of these proceedings, or indeed the parties themselves.
10Whilst judgments of this Court are of course subject to scrutiny by courts of appeal and academic commentary, they are at their core deeply personal to the litigants involved. They can be used as weapons against the other party by the party who perceives him or herself to be victorious or whose evidence has been preferred over that of the other. At times that may be an unintended, but regrettable and inevitable consequence of judgment.
11It is not my wish to inflict that upon the husband and the wife. I do not suggest that I consider that they would necessarily use the judgment in such a way, however, I cannot see that any analysis such as the type discussed above when not required in the final judgment of this matter would assist and may well cause further harm.
12That is not to say I have not listened to all of the evidence, to which I will refer later in these reasons, nor not considered during the course of the proceedings the parties’ competing positions, the positives and negatives of each party and the respective challenges that they have faced over the numerous days the trial ran and the significant volume of evidence presented. I accept that the parties may, erroneously, perceive my election to limit these reasons to what is relevant to the outstanding determinations as a failure to fully consider the circumstances of this matter, however I consider the approach I have chosen to take appropriate, as set out above.
Procedural history and the parties’ respective positions
13The husband commenced proceedings on 2 April 2015 in relation to the child-related proceedings. The wife filed her response on 16 April 2015.
14On 31 December 2015, the single expert witness’ initial report was filed. The single expert effectively recommended that the then care arrangements for Child C be reversed and she come to reside with the husband. The Independent Children’s Lawyer filed a form 2 application seeking that the single expert’s recommendations be implemented which was supported by the husband and opposed by the wife.
15On 6 April 2016, the matter was before Magistrate Calverley who made orders programming the matter for hearing in the context of the financial proceedings and consent orders in the child-related proceedings as follows:
MINUTE OF CONSENT ORDERS
1.Paragraph 2 of the Orders dated 21 August 2015 be varied to provide permission to the parties and their solicitors to inspect all subpoenaed documents received by [Suburb N Psychology] and [Hospital A].
2.The parties be restrained by injunction and an injunction granted restraining each of them from making verbatim notes of the subpoenaed documents, discussing the content of the subpoenaed documents with, or showing copies of any notes made by them of the subpoenaed document to, any person other than a duly appointed solicitor acting on their behalf.
3.At the conclusion of the trial in these proceedings (which is to include any appeal period), the parties are to produce to the Court, copies of all notes taken by each of them of the subpoenaed material, with said notes to be either held or destroyed by the Court.
4.Without admission as to need, for a period of 4 weeks, the Applicant spend supervised time with [CHILD C] on such days and at such times, as agreed between the Perth Children's Contact Service, or in the event Perth Children's Contact Service is not available, such other supervisory service nominated by the ICL, with the cost of supervision to be met by the Applicant.
5.In the event they have not already done so, within 7 days from the date of these Orders, both parties are to contact Perth Children's Contact Service and comply with all intake assessment requirements in order to facilitate supervised time between [CHILD C] and the Applicant taking place.
6.After 4 weeks, Perth Children's Contact Service be requested by the Independent Children's Lawyer to provide a supervisory report, with the cost of the report to be met by Legal Aid WA.
7.Within 14 days from the date of these Orders, the Respondent to contact clinical psychologist [Ms G] or, if she does not have capacity to work with [CHILD C], another clinical psychologist nominated by the ICL, and follow all of the recommendations made by the clinical psychologist with respect to addressing and managing [CHILD C’S] behavioural issues and developmental needs, including but not limited to ensuring [CHILD C’S] attendance at all scheduled appointments.
8.The Applicant be at liberty to obtain information from any clinical psychologist working with [CHILD C] and / or attend any appointments scheduled by the clinical psychologist between [CHILD C] and the Applicant.
9.The cost of [CHILD C’s] sessions with the clinical psychologist referred to in paragraph 8 be shared equally between the parties, with payment to be made in advance of sessions.
10.Subject to the consent of the Single Expert Witness, the ICL be at liberty to provide a copy of the Single Expert Witness report to any mental health practitioner working with the parties or the children.
Dated: 6 April 2016
16At that Court appearance Magistrate Calverley declined to make orders in terms of the Independent Children Lawyer’s form 2 application and observed:
HIS HONOUR: … that on an interim hearing, the Court’s not in a position to have the evidence tested and it appears… that there will be some aspects of the single expert’s report that may be challenged, and the single expert will no doubt be cross-examined by the mother’s counsel in respect of those issues for the Court to then make some findings on any disputed aspect of the… evidence, but particularly the single expert’s. If the matter is to go to an interim hearing, as I say, I wouldn’t be able to have that evidence tested and make any findings, so it doesn’t necessarily follow that because the single expert says what he’s said and what his recommendations are, that the Court would necessarily be able to follow that, if that evidence is disputed. Therein lies the problem with the matter proceeding to an interim hearing.
17The husband agreed with this proposition and supported the matter going to trial on an urgent basis. Magistrate Calverley then proceeded to make trial directions regarding the child-related proceedings.
18The husband filed an amended form 1 application on 28 January 2017 seeking to join financial proceedings. The wife filed her response to the same on 2 November 2016.
19At trial the orders sought by the wife in relation to the child-related proceedings, as particularised in her amended form 1A response filed 2 November 2016, accorded with those proposed by the Independent Children’s Lawyer at the conclusion of the proceedings.
20The husband’s position at trial in relation to the child-related proceedings, as particularised in his amended proposed minute of orders filed 8 November 2016, was that the three children live with him and that he have sole parental responsibility for them, with Child A and Child B spending time with the wife in accordance with their wishes. He proposed that Child C spend time with the wife “as directed” by him provided, however, that she was to have liberal “telephone and/or electronic communication with the mother” with him being at liberty to supervise such communication.
21At trial the children were represented by [Ms C] as the Independent Children’s Lawyer who also appeared as counsel.
22The focus of the trial centred very largely on Child C, however, as was frequently observed by the Independent Children’s Lawyer, the interrelationship between all three children and their respective parents was equally important.
23In the circumstances I describe below, the trial ran for five days in November 2016, at which time the matter was adjourned part-heard to recommence before me on 7 March 2017, with orders being made by consent on 11 November 2016 as follows:
MINUTE OF PROPOSED INTERIM ORDERS
1.The mother and the child [CHILD C] attend a therapeutic counselling session with [Ms G] on Tuesday, 15 November 2016 at 2:00pm with the cost of the session to be met by the mother.
2.The purpose of the therapy session referred to in Order 1 of these Orders is for the mother to explain to [CHILD C] the importance of [CHILD C] having a relationship with her father, the mother's support of [CHILD C] having a relationship with her father and the arrangements set out in paragraphs 4 and 5 of these Orders.
3.During the therapy session referred to in paragraph 1 of these Orders, the mother is to comply with all directions and recommendations made by [Ms G].
4.Subject to the parties' full compliance with the Rules set out in attachment "A" of these Orders, the parties, [CHILD C] and the child [CHILD A] attend family therapy with [Ms G] on Monday, 21 November 2016 at 5:15pm at [Park A] in [Suburb A] with the cost of the session (inclusive of [Ms G’s] travel time) to be met by the father.
5.During the therapy session referred to in paragraph 4 of these Orders and any further therapy sessions recommended by [Ms G] thereafter, the parties are to comply with all directions and recommendations made by [Ms G] prior to, during and after the sessions.
6.In the event the therapy session referred to in paragraph 4 of these Orders is positive and [Ms G] is of the view further family therapy sessions should be scheduled, the parties to liaise with [Ms G] and attend such further family therapy session with her, on those dates and times nominated by her.
7.In the event [Ms G] is of the view that further therapy sessions should take place with [CHILD C] and the mother or, with [CHILD C] and the father, the parties are to facilitate those sessions taking place at the frequency recommended by [Ms G], with the parties sharing the costs of those sessions.
8.Subject to the father's strict compliance with the conditions set out in paragraph 9 of these Orders, he be at liberty to attend an event [CHILD C] is participating in December 2016 with the mother to provide the specific details of the event to the ICL within 7 days.
9.The father's liberty to attend the event set out in paragraph 8 of these Orders, be subject to him:
9.1not approaching [CHILD C] or the mother, or attempting to communicate with either of them by any means;
9.2arriving at the event once the event has commenced (but prior to [CHILD C’s] first event) and leaving the event immediately after [CHILD C] has finished competing;
9.3not posting anything on social media about the event, including but not limited to pictures taken of [CHILD C] during the competition; and
9.4sending one text message to [CHILD C] after the event for the sole purpose of "congratulating her on her excellent [results]."
10.The mother to ensure [CHILD C] acknowledges and responds to the father's text message in a polite and respectful manner.
11.Both parties be restrained by injunction and an injunction granted restraining each of them from speaking or communicating with [CHILD C] about any issues that have been raised by either of them during the Family Court proceedings, any views they may have about the other parent (or a member of the other parent's family) or having such conversations / communications in a manner which [CHILD C] could hear.
12.In the event [Ms G] is of the view that the parties should trial a short period of unsupervised time between [CHILD C] and the father (which would take place in a public neutral venue and in the presence of [CHILD A] and / or [CHILD B]), the parties to comply with the recommendations made by [Ms G] and comply with all directions or recommendations made by her in relation to the visit.
13.The Independent Children's Lawyer be at liberty to liaise with [Ms G] to obtain feedback about the family therapy or the progression of [CHILD C’s] relationship with her father.
14.The mother to undertake specific therapy with her therapists' [Dr C] and [Ms D], to address her entrenched negative views of the father and how this is impacting on [CHILD C’s] views about him, to assist her in facilitating [CHILD C’s] relationship with the father and addressing the parentification of [CHILD C] by the mother (where [CHILD C] has taken on a protective role).
15.Within 3 months from the date of these Orders, the mother to obtain a written report from either [Dr C] or [Ms D] in relation to her progress in addressing the issues set out in paragraph 14 of these Orders and provide a copy of that report to the Independent Children's Lawyer.
16.The Independent Children's Lawyer be at liberty to liaise with and obtain information from [Dr C], [Ms D] or [Dr E].
17.There be liberty to re-list the proceedings on short notice.
Dated: 11 November 2016
(signed)
Independent Children’s Lawyer
“A”
RULES TO FAMILY THERAPY
1.[Mr Merla] and [CHILD A] will arrive at [Park A] 15 minutes prior to [Ms G], [Ms Merla] and [CHILD C].
2.[Ms Merla] and [CHILD C] to wait in [Ms Merla’s] car until [Ms G] arrives and they will join [Mr Merla] and [CHILD A] together.
3.[Mr Merla] is not to approach [Ms Merla] or [CHILD C] until [Ms G] is in attendance.
4.All family members are to use their best endeavours not to use bad language or be disrespectful to one another (including but not limited to name calling).
5.The parents will not engage in inappropriate conversation with each other or the children and will not discuss any contentious issues or issues raised during the Family Court proceedings.
6.Neither parent or the children will walk away or disengage unless so directed by [Ms G].
7.[Ms Merla] to actively (in an authoritative manner) encourage [CHILD C’s] involvement in the activities.
8.[Ms G] will support [Ms Merla] in managing [CHILD C’s] behaviour throughout the session.
9.[Mr Merla] will leave managing [CHILD C’s] behaviour to [Ms Merla] and [Ms G] unless otherwise directed by [Ms G] and will neither comment nor offer opinion.
10.[Mr Merla] to take direction from [Ms G] about his proximity and interactions with [CHILD C].
11.[Mr Merla] to not make any comments to [CHILD C] or [Ms Merla] which could be interpreted as criticisms by either of them.
12.[Mr Merla] and [Ms Merla] to use their best endeavours to role model to [CHILD C] and [CHILD A] that they can behave civilly to one another.
13.At the conclusion of the session, [Mr Merla] and [Ms Merla] are to thank each other and the children for a pleasant hour. There is to be no talk of future visits. [Ms Merla] and [CHILD C] will leave first and [Ms G] will remain with [Mr Merla] and [CHILD A] for 10 minutes after they leave.
14.Neither parent is to attempt to communicate with the other parent after the session (even if well intentioned) unless with the prior approval of [Ms G].
24Additional orders were made to facilitate communication between the single expert witness, the wife’s therapist and Ms G, Child C’s therapist.
25The orders represented, in my view, a genuine attempt brokered by the Independent Children’s Lawyer to attempt some positive re-establishment in the relationship between the husband and Child C which by the time of trial had broken down entirely.
26It was regrettably necessary to return to Court during the period of the adjournment to review the orders and, ultimately, the steps taken to commence a rebuilding process failed. The husband seeks to place responsibility for that failure at the feet of all persons involved other than himself.
27The matter was to further return to the Court on 7 March 2017 for the conclusion of the trial, although the same proceeded by way of submission only and the receipt of further reports. At that time, the Independent Children’s Lawyer presented a minute of proposed orders in the following terms:
INDEPENDENT CHILDREN'S LAWYER'S
MINUTE OE PROPOSED FINAL ORDERS
1.All orders relating to the children [CHILD A] born [in] 2000, [CHILD B] born [in] 2004 and [CHILD C] born [in] 2005 ("the children") be discharged.
2.The children communicate, spend time and live with their parents, in accordance with their wishes.
3.The parents have equal shared parental responsibility for the children.
4.Both parents to be listed on school enrollment forms and as emergency contacts at any school attended by the children.
5.Any school attended by the children be at liberty to release to either parent at their request and expense, copies of the children's school reports, school photo order forms, attendance records, behavioural records or reports, school newsletters or, any other information of a kind that would ordinarily be provided to parents.
6.Both parents be at liberty to attend parent-teacher meetings, school events, assemblies, sports carnivals and extra-curricular activities the children are participating in, provided they do not approach or attempt to communicate with the other parent, unless with the other parents prior written consent.
7.Both parents to promptly notify the other of all extra-curricular events the children are participating in from time to time, with said notice to include the time, date and venue of the events.
8.Both parents to ensure the other is aware of their current contact details, including their home address, mobile number and email address, and forthwith notify the other, should any of those contact details change.
9.Save in the case of a serious medical emergency, where the parents have liberty to speak directly to one another, all other communication between the parents is to be in writing via text or email and must be courteous and respectful.
10.Both parents to forthwith notify the other should any of the children suffer any serious health issues or require urgent medical treatment while in their respective care, including but not limited to attendance at the Emergency Department or admission to hospital, and authorise any medical practitioner treating the children, to release all relevant information about the children's medical treatment and health to the other parent.
11.In the event any of the children have appointments with medical specialisits, allied health professionals or psychologists, the parent making the appointment is to provide written notice to the other parent of the appointment details, which is to include the purpose of the appointment, the name of the professional seeing the child and the appointment date and time, with said notice to be provided within 48 hours of the appointment having been made.
12.In the event any of the children are hospitalised, both parents be at liberty to attend and spend time with that child whilst in hospital.
13.Both parents be restrained by injunction and an injunction granted restraining each of them from:
13.1denigrating the other parent to the children, or in the children's hearing;
13.2speaking with, or questioning the children, about any of the allegations or issues raised during the course of the Family Court proceedings, including matters to do with each parent's addiction issues and mental health;
13.3discussing the Family Court proceedings, or issues concerning the welfare of the children, or disseminating any documents filed or correspondence exchanged during the Family Court proceedings, on Facebook or any other social media platform.
14.Without admission as to need, the Mother be restrained by injunction and an injunction granted restraining her from physically disciplining or physically restraining the children.
15.The children [CHILD C] and [CHILD B] attend upon psychologist [Ms G] for therapeutic counselling at frequency recommended by [Ms G], with the cost of the children's therapy to be shared equally between them.
16.Both parents be restrained by injunction and an injunction granted restraining both of them from taking [CHILD C] or [CHILD B] for counselling with any therapist except [Ms G], save with the prior written consent of the other parent.
17.In the event both parents agree to a change in therapist for [CHILD C] or [CHILD B], they be at liberty to provide the new therapist with a copy of [Mr C’s] Single Expert Witness report and review assessment report ("[Mr C’s] reports").
18.The Independent Children's Lawyer be at liberty to provide a copy of [Mr C’s] reports to the Department for Children Protection and Family Support, [Ms G] and any therapist working with either parent.
19.The parents be at liberty to provide [CHILD B’s] paediatrician with a copy of [Mr C’s] reports.
20.In the event any issues arise with [CHILD B] and the WA Police, including but not limited to [CHILD B] being referred to JJT or appearing in the Perth Children's Court, [Mr C] be at liberty to speak with, and provide information to, the relevant persons about his assessment of [CHILD B’s] family system, and how this has impacted on [Child B’s] wellbeing and development.
19.The Independent Children's Lawyer be discharged.
20.All outstanding applications and Responses be dismissed.
28The greater majority of the above orders were agreed and, as seen, in the context of the parenting proceedings I propose to deal only with those orders that were not agreed, namely, those in relation to Child C.
29The matter again returned to the Court on 6 April 2017, on the application of the Independent Children’s Lawyer to reopen the matter, and further evidence was received by way of affidavit from the Independent Children’s Lawyer.
30As to the financial proceedings, in essence they are concerned with the disposition of current debt and otherwise as to the proportioning of the parties’ respective superannuation interests.
31At the conclusion of the trial, prior to several re-openings of the parties respective cases, to which I refer below, it appeared highly likely, if not inevitable, that the husband would be declared bankrupt. An inevitable consequence of the husband being declared bankrupt is that the wife’s bankruptcy would follow, thus leaving only the parties’ protected assets and their superannuation entitlements intact.
32On 6 April 2017, I had requested that the husband advise the Court whether or not he intended to file for bankruptcy. The husband wrote to the Court on 18 April 2017 to advise that “at this point in time I do NOT intend to file for bankruptcy”. The husband filed an updating affidavit on 17 August 2017, which he was ordered to do so on 29 June 2017, which did not indicate any change in his position.
33The matter again returned to Court on 29 June 2017 on the application of the husband, an application that I deal with separately at the conclusion of these reasons. On that occasion further relevant evidence was also received as to the financial proceedings, again to which I refer later in these reasons.
34The matter was once again re-opened, at the husband’s request, and listed to receive further evidence on 12 October 2017. There is no dispute between the parties as to the retention of chattels, but, as mentioned, there remains a limited dispute as to the disposition of their superannuation interests and current debts.
35Again, attempting to apportion blame, as the parties sought to do in the running of both their financial and parenting cases, has largely become irrelevant to the position in which they now find themselves.
36The child-related proceedings preoccupied the parties and the majority of the trial, with the financial proceedings becoming almost secondary. I will turn to deal with the parenting issues first in these reasons.
The husband's McKenzie friend application
37Throughout the trial each of the parties was unrepresented, although on the first day of trial the husband had sought to have a McKenzie friend appointed.
38I declined the husband’s application as there was nothing before me that would suggest that the husband was unable to effectively run his own case. Further, it was clear that the husband’s nominee, [Dr P], who remained in Court for most of the evidence, was rendering assistance to the husband. This is also evident with respect to the application subsequently filed by the husband on 23 May 2017, to which I refer later in these reasons.
39In my view the husband was more than capable of running his own case, which was reinforced throughout the proceedings where the husband acquitted himself as his own counsel remarkably well. Indeed, both parties presented their cases well and the Court was considerably assisted by Ms C with regard to any relevant matter in the child-related proceedings that had been apparently overlooked by the parties.
The composition of evidence
40The husband relied upon:
·his case information affidavit filed 2 April 2015;
·his trial affidavit affirmed 30 March 2016 and filed the same day;
·a further affidavit affirmed 7 November 2016, although the same was directed more to a criticism of a report prepared by Child C’s psychologist, Ms G, rather than serving to update the Court;
·a further affidavit directed to financial matters affirmed 16 August 2017 and filed 17 August 2017;
·statements of financial circumstances affirmed and filed 21 May 2015 and a second affirmed 8 November 2016, accepted for filing on the second day of the trial; and
·an affidavit of [Ms A Merla] (his sister) sworn 15 July 2015 and filed 20 July 2015.
41The wife relied upon:
·her case information affidavit filed 16 April 2015;
·her trial affidavit affirmed 27 April 2016 and filed 28 April 2016;
·a further affidavit directed to financial matters affirmed 31 October 2016 and filed 2 November 2016;
·a further affidavit directed to financial matters affirmed 22 August 2017 and filed 25 August 2017;
·statements of financial circumstances filed 28 April 2016 and 2 November 2016, respectively;
·affidavit of [Ms H] (a friend of the wife’s) sworn 27 April 2016 and filed 28 April 2016; and
·affidavit of [Ms I] (also a friend of the wife’s) affirmed 18 May 2016 and filed 16 June 2016.
42The Independent Children’s Lawyer relied upon a report prepared by Mr C as the duly appointed single expert witness filed 31 December 2015 and a subsequent report dated 28 February 2017 and filed 1 March 2017, prepared whilst the matter was part-heard.
43The Court also had before it the conference memorandum prepared by Family Consultant Hanavan at a case assessment conference conducted on 29 May 2015.
44The Independent Children’s Lawyer was to file additional material in support of an application to reopen the matter to which I refer later in these reasons.
45The husband and his sister, Ms A Merla, gave evidence.
46The wife and her witness Ms I gave evidence and her other witness was not required for cross examination.
47The wife’s psychologist Ms D also gave evidence. The wife’s group therapy psychologist Dr C was not required to give evidence.
48Ms G, Child C’s psychologist, gave evidence as did Mr C.
49The parties’ supporting witnesses assisted with some historical context and respectively had favourable things to say about the party they were supporting.
50The evidence of the supporting witnesses should serve to remind the parties that the other party is neither all bad nor all good, but rather view circumstances with a sense of balance and acknowledge their respective contribution to the circumstances that now prevail.
51The professional witnesses were all impressive and I refer to their evidence in some detail later in these reasons.
The single expert witness’ evidence
52In the context of these proceedings the parties engaged with Mr C, a clinical psychologist who was appointed as single expert witness, by consent, as ordered 7 August 2015.
53Mr C filed his initial report at the end of December 2015. At that time he recommended that the care arrangements for Child C be immediately changed such that she reside with the husband with a graduated transition into a shared care arrangement with the wife. As seen this recommendation was ultimately not followed, an outcome for which the husband sought to lay blame upon the Court.
54During the course of the trial, however, Mr C gave evidence during which he opined for a contrary view, to which I refer in detail below. The gravamen of his evidence was that Child C should remain residing with the wife and, if forced to reside with the husband, Child C would most likely run away and if thereafter forcibly returned by the wife to reside with the husband, it would be likely that she would again abscond from the husband but not return to the wife, but rather attempt to find a place or circumstance in which her views would be respected. Mr C opined that such an outcome would not be compatible with Child C’s best interests.
55Mr C provided an updating report on 1 March 2017, which report supported and was consistent with the opinion he expressed at trial.
The child-related proceedings
56As set out above, it is the orders in relation to Child C that remain the cause of dispute between the parties. Although the parties and the Independent Children’s Lawyer ultimately agreed to the parties having equal shared parental responsibility for all the children, I will consider the utility and benefit to Child C of such an order in these reasons.
57In relation to the balance of the Independent Children’s Lawyer’s proposed minute, it is paras 20 and two that cause difficulty.
58The husband sought that para 20 of the minute should apply to all the children, not just Child B. In the regrettable event that any of the children are in the position contemplated by the proposed paragraph, I consider it desirable that as much information available as to the children’s family dynamics be made available to assist either the Juvenile Justice Team or the Children’s Court, and I will order accordingly.
59In relation to para two, whilst the husband agrees with that order being applicable for Child A and Child B, he does not agree that the order should apply to Child C.
60In lieu of the orders proposed by the Independent Children’s Lawyer, the husband seeks an order that Child C reside with him or, in the event that I am not satisfied that such an order would be in Child C’s best interests, that Child C be placed in foster care. In his closing submissions on 7 March 2017, the husband stated “I firmly believe that my daughter needs to be taken care of by the State… If she is unable to spend any time with me”. In his written submissions filed the same day, he went on to say:
Finally I ask this of the court. [Mr C] has already concluded that other living arrangements be made available for [Child B] if I am not able to look after him. I ask this court to consider the same for my daughter if it concludes she cannot spend time in my care. Clearly there are no future positives for [Child C] to look forward to while in her mother’s care. She may be showered with her mother’s obedience but that is about it. So I ask this court to make other living arrangements possible for my daughter.
61Inherent in the husband’s position is that the wife is incapable of fostering Child C’s best interests to the extent that Child C should be removed from her care.
62Such a position in contrast, however, is not maintained with respect to Child A and Child B.
63It is not suggested by either of the parties that either of them have not faced significant personal challenges that may have and in varying degrees from time to time impacted upon their capacity as parents. The fundamental difference between the parties perception of these challenges is, however, highlighted in the husband’s position relating to Child C. He essentially advocates that the distance in the relationship between he and Child C is entirely the consequence of actions undertaken by the wife to the intent and effect of alienating any affection that Child C may have had for her father. The husband does not accept any meaningful level of responsibility for the state of affairs that now exist in terms of his relationship with Child C or, as more fulsomely stated, the absence thereof. Effectively it is the husband’s case that the wife has acted to alienate Child C from him.
64It was the Independent Children’s Lawyers submission that:
[C], MS: A child refusing to spend time with a parent does not in and of itself equate to alienation. Family systems and family breakdowns are complex and there are often multiple dynamics and forces at play and a judge making findings after having the benefit of having considered independent evidence and forming views about the credibility and conduct of the parties is, in my respectful submission, best placed to determine the reasons why a child may be refusing to spend time with a parent, but more importantly what can be done, if anything, to remedy that situation.
65I respectfully agree.
66For the reasons I set out above, and in light of the parties’ agreement to which I have referred and my decision as to para 20 of the proposed orders, I focus therefore only on what orders should be made in Child C’s best interests.
Brief history
67As seen, I do not propose to traverse the history of the matter in greater detail other than to refer to the same in the context presented to the Court where I am left to determine the living arrangements for one of the parties’ three children and in circumstances where at the commencement of the trial that child was nearly 12 (and turned 12 during the course of the proceedings) and was refusing to engage in a relationship with her father.
68The wife was born [in] 1975 and at close of trial was 42 years of age. She came into the relationship with a significant and unfortunately disjointed childhood history with a mother with mental health issues, alcohol and drug use issues, a father with declining health issues and her own long term health concerns, some of which were birth related. The wife’s difficulties were compounded by, as she described it, “many years fending for myself, looking after my parents and enduring a somewhat neglectful childhood and adolescence in a less than adequately safe environment”.
69The wife’s problems were exacerbated as a consequence of what she described as a “traumatic prolonged sexual and physical assault which combined with my upbringing resulted in me being diagnosed with complex post-traumatic stress disorder”.
70The wife’s background and her various issues were extensively canvassed, and largely acknowledged and accepted, by both parties and the Independent Children’s Lawyer.
71Notwithstanding the challenges that the wife faced she obtained qualifications in [teaching] and was previously married in 1995, being divorced in 2000.
72The husband was born in [Country A] [in] 1966 and at close of trial was 51 years of age. He migrated to Australia in 1970 and became an Australian citizen in 1985.
73The husband provided only a cursory explanation of his background and his various issues in his trial affidavit and case information affidavit, despite dedicating a large proportion of his case to addressing that of the wife. He stated that his failure to include this information was due to “being legally naïve”. This unbalanced approach to the parties’ respective backgrounds and issues was also apparent in the single expert’s initial report, which I deal with later in these reasons.
74It was only during the Independent Children’s Lawyer’s cross-examination of the husband that further details of the husband’s background emerged. In an undated Child and Adolescent Mental Health Service (“CAMHS”) initial assessment for Child B, marked as received 31 January 2011, the husband described his sister [J] as having “ongoing mental health issues”, his parents as “emotionless” and having “clear roles based on gender” and that that the husband “believes he has the ‘addictive gene’ and cited alcohol as sometimes being problematic for him”. The husband denied that “he struggles not to repeat his own emotionless childhood experiences within the repertoire of his own avoidant attachment style”, as reported in an undated CAMHS discharge summary.
75The husband also obtained tertiary qualifications and in 1988 he graduated from [University A] with a [Bachelor of Commerce].
76The husband and the wife met in October 1999 or thereabouts and commenced cohabitation four months later in February 2000. The wife became pregnant in 2000. The parties married in 2000 and Child A was born that year. At the time the parties were residing in [Adelaide].
77When Child A was but six weeks old, the wife’s father was diagnosed with a terminal illness as a consequence of which the parties travelled initially to the mid-north coast of [Queensland] and then later to [another Queensland town] on a regular basis to spend time with the wife’s parents. Her father passed away in early 2002.
78In March 2002 the parties moved to Perth at which time the wife was pregnant with Child B.
79Child B suffered developmental and behavioural issues from before being one year of age. The family has had ongoing contact with professionals and support services regarding Child B. He has been diagnosed with various conditions, including post-traumatic stress disorder. The wife in particular has found it difficult to process and cope with Child B’s behaviour and has a strained relationship with him, although reportedly there has been some recent improvement.
80Child C was born in 2005.
81Throughout the marriage the wife worked from time to time and was the primary care giver for the children whilst the husband worked full time.
82The parties separated on 17 December 2014. At that time the wife was voluntarily admitted to hospital for a period of six weeks with the children remaining in the husband’s full time care. It was the husband’s case that the wife’s “abuse of alcohol led to the breakdown of the relationship”.
83The wife returned to the family home from hospital on 1 February 2015 after which there was what she described as “a violent incident” which resulted in her obtaining a violence restraining order against the husband. The wife remained in the family home whilst the husband temporarily moved with the children to the paternal grandmother’s home.
84On 20 February 2015, Child C left the husband’s care and came to reside with the wife. She has done so since.
The parties’ personal challenges
The wife
85It is common ground, as stated, that the wife experienced significant psychological issues during the marriage. In 2009, on her own evidence, she commenced drinking to excess. The wife’s stresses were exacerbated through the management of three children and particularly managing Child B’s issues and associated therapy appointments.
86The wife admitted herself to hospital for psychological treatment to manage her post-traumatic stress, depression, anxiety and alcohol usage on the following occasions:
·3 February 2014 to 3 March 2014 – Hospital A, [Suburb B];
·June 2014 – [Clinic C, Suburb C];
·20 August 2014 to 8 September 2014 – Hospital A, Suburb B;
·17 December 2014 to 4 January 2015 – Hospital A, Suburb B; and
·4 January 2015 to 1 February 2015 – Clinic C, Suburb C.
87There is no doubt that during the periods that the wife was hospitalised the husband accepted responsibility for the day to day management of the parties’ three children, however, it was the case for the wife that he was otherwise “disengaged” and that she was left to carry the primary responsibility. Her evidence on this regard was not successfully challenged.
88At trial the wife’s case was that she had not consumed alcohol since 4 August 2015, her mental health was stable without medication and that she continued to attend both individual and group counselling. In her affidavit of 22 August 2017, the wife annexed an email indicating that due to financial hardship she has had to suspend her private health insurance and has been unable to attend her weekly group therapy sessions.
89The wife’s psychologist Ms D provided evidence at trial and three reports dated 4 December 2014 and 3 March 2016, as annexed to the wife’s trial affidavit, and 21 February 2017.
90The wife has attended upon Ms D for treatment since February 2014. Ms D reported the wife initially presenting as:
… experiencing comorbid mental health issues against a backdrop of psychosocial stressors and trauma history. She had extremely severe symptoms of trauma, anxiety and depression, with secondary alcohol dependence. She expressed a period of decline and “burning out” in the previous few years, with multiple health issues, stressful shifts as a [teacher], problems with her son and marriage.
91Ms D described her role as being there “to support [Ms Merla] with her direct mental health issues, and then we’ve been drawn into a family court proceedings”.
92It was her position that the wife’s mental health has markedly improved since commencing therapy, and whilst such depression and trauma symptoms were still present they were not at a clinical level. Ms D was supportive of the wife’s parenting application and positively reported that:
[Ms Merla] has shown herself to be a resilient and resourceful woman. Despite the difficult and stressful nature of her separation, I have witnessed [Ms Merla] go from strength to strength over the past year. She has remained engaged in one on one therapy and outpatient groups, as well as draws on an extensive support from her social network of family and friends. She has been at times highly stressed as one would expect in the context of a difficult breakup; however, has managed to maintain her overall sobriety and manage things that need to be done.
93In her updating report dated 21 February 2017, Ms D continued her positive report regarding the wife’s mental health and abstinence from alcohol.
94Ms D asserted that the wife was supportive of the husband having a relationship with Child C, but added the rider that “she wants it done in a way that supports [Child C]”. Despite this, and Ms D’s report that the wife had regularly sought advice in their sessions of how to support the children post-separation, it became apparent during trial that the wife had not addressed her negative perception of the husband in therapy sessions. It was suggested to Ms D at trial that she incorporate this into her therapy treatments with the wife and in her updated report Ms D commented on this, as discussed later in these reasons.
95The wife’s group therapy psychologist Dr C also provided a report dated 2 March 2016, as annexed to the wife’s trial affidavit. He reported that between March 2014 and February 2016 the wife attended in excess of 50 group sessions, which is well above average attendance. It was Dr C’s opinion that the wife had “successfully resolved her excessive alcohol use” and that she “impresses with her demeanour and management of what has been a very difficult and acrimonious separation from her husband”. He also opined that he was surprised that other professionals had determined the wife to be ill-suited to caring for Child C and that he found “none of the purported personality defects that have been cited as reasons of her unsuitability to have at least some custody of her daughter”.
96Despite hearing evidence from professional witnesses supporting the wife’s ongoing positive recovery, the husband was reluctant to accept the same.
The husband
97As discussed above, throughout the proceedings the husband sought to minimise any issues confronting him and in particular minimised the effect of his gambling and his own alcohol consumption. With respect to the latter he considered the same to be irrelevant as “my alcohol use would happen late at night when the children were in bed”. Such a position ignores the dimension of the responsibility of parenthood.
98The husband did not perceive himself to have a drinking problem, although admitted he had “relied” on alcohol in the past. Reflecting upon this, the husband stated:
[MERLA], MR: I have looked at my parenting of [Child C] probably for the last two years, trying to figure out if there was anything I did wrong or something I should have done better and I will fully accept that as a parent there are many, many occasions where you look back and go, I could have done better. But, I don’t relate any of those issues to how I parented [Child C].
99Similarly the husband gave evidence regarding his gambling habit, which he estimated had cost $100,000 over the course of the marriage. He told the Court that between 2010 and 2014 he would attend the casino to gamble approximately twice a month. He would go on Friday evening and return early the next morning. He also admitted to playing low stakes online poker. It was his position that “in relation to the children, I don’t believe my gambling has affected them”. It is apparent that the husband continues to gamble.
100The wife gave evidence that the husband’s gambling habit was far more prolific and was often conducted in the presence of the children. She also told the Court that the husband’s gambling habit had impacted on the parties’ ability to provide for the children and that “from my point of view, there were times I was trying to deal with the children and [Mr Merla] would sit outside and play poker and would [only] intervene when things got to the last resort”.
101It is, in my view, naïve to suggest that gambling does not potentially put the children at risk, and I agree with the view expressed by Mr C, which I refer to in detail later in these reasons, that “gambling is putting the children at risk by virtue of the financial resources they won’t be able to access and supports”.
102The Court accepts that the husband was and is currently struggling with his mental health and alcohol consumption in the context of these proceedings and his continued estrangement from Child C.
103The depth of the issues facing the husband was perhaps exemplified by the submission he made from the bar table when the proceedings were further heard before me in March 2017, when he described his position thus:
[MERLA], MR: What seems to be lost in this situation right now, I’m struggling to parent my dog, let alone my children. In all open honesty, I am drinking myself stupid every night, to get to sleep, so I can stop my brain. I am waking up in the mornings crying my eyes out. Last night I read a quote on the internet, and it said “It’s hard when you miss people, but you know if you miss them it means you were lucky, it means you had someone special in your life and one worth missing”. Your Honour by that definition I’m a very lucky man. I do have someone worth missing, my lovely daughter. [Ms Merla] talked about our children and gave you snapshots of their lives, and I don’t disagree with anything that she said. I don’t think there’s any doubt that both parties love their children more than themselves. [Ms C] mentioned that at the time of separation she believed that I was the more competent parent. I still struggle with why the Court did not do anything at that time. I know the past is the past and the Court chose not to do anything, but it plays on my mind, it has done for the past year. I’m sorry Your Honour, I’ve written many notes but most of it doesn’t really matter.
104I accept that the husband may feel his issues have been unfairly focused upon, however, as discussed above, the issues for the wife were acknowledged and accepted by both parties and the Independent Children’s Lawyer, whereas there was some dispute surrounding the husband’s gambling and alcohol usage.
105The Court has great sympathy for the husband and the wife in terms of the struggles that each of them had within their relationship. Between the two, however, it is clear that the wife has accepted the issues that confront her and taken active steps to deal with them. The husband is, in my finding, significantly reluctant to acknowledge any part that he may have played in the failing dynamics of the parties’ relationship, their respective personal struggles and the impact that the same has had on the children.
106I am not unsympathetic to the frustration the husband must feel from being at times Child C’s primary carer and keeping the family together during periods of the wife’s hospitalisation and rehabilitation, to now finding himself effectively excluded from Child C’s life.
107That being said, the Court is left questioning the husband’s motivation towards the reestablishment of a relationship with Child C given the opportunities presented to him to which I refer later.
The law
108In determining a child-related proceeding such as this the Court must determine the matter in accordance with the provisions of Pt VII of the Family Law Act 1975 (Cth) (“the Act”). The overarching principle being that in making any order the Court must make such order as best serves the best interests of the child or children concerned.
109Here, ultimately, the parties both propose that they should share parental responsibility equally and as a consequence the Court must also consider whether, in those circumstances, an order should be made for Child C to spend equal time with each parent or substantial and significant time with the non-primary carer or a reduced period of time subject to the assessment of such an order being compatible with the child’s best interests.
110Despite the parties’ apparent agreement as to parental responsibility for Child C, I must still be satisfied that such an order is in her best interest, in the context of which I also consider the utility of such an order.
111In determining what is in a child’s best interests the Court is mandated to have regard to the following matters as prescribed in s 60CC(2), (2A) and (3):
Primary considerations
(2)The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note:Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3)Additional considerations are:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)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);
(c)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;
(ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
(d)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;
(e)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;
(f)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;
(g)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;
(h)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;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)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;
(l)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;
(m)any other fact or circumstance that the court thinks is relevant.
The primary considerations
112The first of the primary considerations refers to the nature of the relationship between the parties in a qualitative sense and the benefit that the maintaining of such a relationship has for the child.
113This consideration is thrown into very sharp focus in determining what is in Child C’s best interests.
114It was the husband’s case that prior to separation he and Child C shared a good relationship. As already alluded to, the husband believes that the deterioration of this relationship rests solely at the feet of the wife, and as such found it difficult to depart from the narrative he had adopted, namely, “this was a parental alienation case”. The wife asserted, and it was her case, that the husband’s behaviour resulted in his estrangement from Child C.
115It was the wife’s case that there had been some strain in Child C and the husband’s relationship prior to the parties’ separation. She observed that:
[MERLA], MS: … for the most part they had a good relationship, the night that I came home from hospital in February, and I do still maintain that that was an incident of violence and aggression, obviously our accounts will differ on that. [Child C] lay with me on the sofa bed in the middle of the family area for hours in tears, crying because she said he’s scary, take me away from here, I don’t want to be here.
116It is clear that towards the end of the parties’ relationship the children were being exposed to, and often a part of, the escalating conflict between the parties.
117The wife reported that immediately post-separation when she was hospitalised, Child C’s feelings towards the husband were as follows:
(h) [Child C’s] journal entry at that time shows an unhappy child living with [Mr Merla] and the boys. [Child C] reports that she made repeated requests to visit me in hospital, which were refused by [Mr Merla]. She also made repeated requests to be taken to the [motorcycle track] to ride which were also refused. Between 17 December 2014 and 1 February 2015 [Child C] made one visit to the [motorcycle track] when my friend, [K] picked her up, took her there and later drove her back home. [Child C] reports she was made to sleep in unwashed, smelly, urine stained bed sheets (she no longer wets the bed) and was treated unfairly in comparison to her brothers. [Child C] also reports that she was constantly hungry as there was no afternoon tea provided or allowed, and she had to go from lunchtime at school (11:00am) until dinner time (6:00pm) without food. [Child C] reports her brothers were stealing blocks of chocolate from the [shopping centre] at this time. Furthermore, this account is the same for the time that [Mr Merla] and the children were living at [Mr Merla’s] mother’s house from 3 to 20 February 2015. I query why it was necessary for [Child C] to run away if she was so happy and felt safe in [Mr Merla’s] care during this period.
118There seems to be no acknowledgement from the wife that at the time described above both the parties and the children were going through a period of upheaval, with the wife’s hospitalisation and the parties separation, which would most likely have contributed to, if not caused, Child C distress and contributed to her unhappiness.
119In the wife’s case information affidavit filed 16 April 2015 she asserted that:
Between 3 February 2015 and 20 February 2015 the father told the children they were not allowed to visit me and I only spoke to them on the telephone. I only had intermittent visits with [Child C] after school (at school), for 10 to 15 minutes. I did not see the boys at all.
120Further, that the husband “does not seem to have an understanding of the impact denying [Child C’s] access to me has had on her”.
121The husband asserted that prior to separation the relationship between he and Child C was “very happy”. He denied that he had restricted the children’s access to the wife whilst she was in hospital, but rightly acknowledged that after the wife obtained a violence restraining order against him on 2 February 2015 this severely curtailed his ability to arrange for the children to see the wife. In both his trial affidavit and at trial the husband asserted that the reason Child C ran away from his care on 20 February 2015 and went to the wife was “because there was a [motorcycle] event happening that weekend, I was not able to facilitate [Child C] going in any way by contacting the mother because of the violence restraining order. I suspect [Child C] really wanted to go to that [event] and voted with her feet”. The husband does not appear to consider the possibility that Child C absconded from his care as she wanted to see the wife.
122After her return to the wife’s care, Child C and the husband did not have any contact until on or around 20 April 2015, when the husband received a telephone call from Child C saying “you need to come and pick up your fucking sons”.
123On 24 April 2015, the husband attempted to commit suicide. He was discharged from hospital early in the morning and decided to attend Child C’s school’s [assembly]. Although the husband “stayed in the background”, Child C reported that she felt upset and “creeped out” by the husband. The husband accepted that his attendance was “not so great” an idea and could have been confronting for Child C, however, his state of mind at that time was “overwhelming” and he felt an “emotional pull of wanting to see child you haven’t seen in several months”.
124On 3 May 2015, Child C sent the husband a message via Facebook Messenger saying “So bloody broke ninty dollar breakfast and an air plane flight. And I don’t f….. Love you you’re an asshole”. The wife asserted that Child C had reactively written this after seeing a Facebook post about the husband, Child A and Child B having experienced a joy flight and breakfast, in circumstances where the husband had claimed to be in financial difficulties.
125Annexed to the husband’s affidavit of 30 March 2016 was a significant body of messages exchanged between the husband and Child C via Facebook. The exchanges are dated as having commenced on 3 May 2015. Some of the language used by Child C is disgraceful. Putting the language aside, however, and notwithstanding that Child C had previously and persistently told her father in unequivocal terms that she would prefer to be left alone by him, on 5 August 2015 a message conversation commenced between Child C and her father at 7.22 pm and concluded at 9.53 pm during which, and despite her repeated suggestions that the husband should “fuck off”, Child C continued to engage with him throughout.
126There was little that was complimentary of the husband in the course of the conversation, however, it continued. Regrettably a portion of the conversation revolved around the husband trying to justify actions that he had taken, which in the circumstances and mood of the conversation was probably a pointless exercise and was met with responses such as “give it a fucking rest” and “piss off dick head”.
127A singularity of focus by the husband was the wife’s drinking issues to which he returned on numerous occasions in the course of the conversation seeking to justify his position to Child C, which Child C clearly perceived as hypocritical, given the husband’s own issues with alcohol and gambling.
128There are two aspects of this conversation which are puzzling; firstly, as to why the husband would try to justify his position when quite clearly he did not have a receptive audience and secondly, why it was that despite her repeated requests to end the conversation Child C elected not to do so herself.
129There were further exchanges later that month where Child C’s contribution was largely telling her father to “fuck off”, noting at one point that she believed the legal age for opening a Facebook account was “Actually its thirteen fuck off”, degenerating in subsequent conversations to “Fuck off now you cunt” and continuing in a similar vein.
130To his credit the husband attempted to engage with Child C and offered “carrots” for her making contact with him, for example by referencing looking at puppies and the possibility of her joining the husband and the boys on [an overseas] holiday, which resulted in the response:
If you even consider thinking I would come [overseas] you are a dick head wich I now you you now I don’t want to come and wont come so go get a life and piss off. And by the way you should go back to school and learn some grammar. So go get a life and leave me the hele alone and I hope you get eaten by a tiger or lion when you go (if) you go.
131The husband’s attempts to initiate communication continued through to the point of the preparation of his trial affidavit, however, his attempts were unsuccessful, although the curiosity remains as to, at times, the length of engagement between Child C and the husband, although long engagements were singular and the majority of those messages replicated.
132On 29 May 2015, the parties attended a case assessment conference with Family Consultant Hanavan, where they were interviewed separately. In the resulting report, the Family Consultant recommended the husband:
… reconsider his views and consider his possible contribution to [Child C’s] current experience and associated anger. The Family Consultant supports a therapeutic response to improve this relationship, as has been negotiated by the parties. However, the Family Consultant is also of the view such a response is likely to place undue stress on [Child C] and highlight likely to be unsuccessful while the father maintains his current stance in relation to this issue.
133When asked about these recommendations, the husband stated:
[MERLA], MR: I - to this day I have huge issue with what he said…The statement to me that it’s unreasonable that I should try and pursue a relationship with my daughter is beyond my comprehension. And further to that, when I asked him walking out of the room, how was it that he suggest that I reengage with my daughter, he said, “You should demonstrate positive behaviours”. My question to him was “How do I do that, when it’s impossible to actually see my daughter”.
134Throughout July and August 2015 the husband made multiple requests to the police to conduct welfare checks or attend the wife’s premises after obtaining information from Child B and Child A that the wife may have been alcohol affected. The husband deposed to having “heard my daughter [Child C] screaming ‘you fucking cunt, can’t keep your fucking mouth shut’” in the background of a telephone conversation with the boys in which they relayed their suspicions that the wife had consumed alcohol. The husband acknowledged that Child C “probably felt she was being spied on” and his actions may have had a negative effect.
135The wife gave evidence that on numerous occasions during the latter part of 2015 Child C saw the husband at the bus stop opposite her own but he “made no attempts to actually speak to [Child C]”. The wife stated that this had made Child C feel “uncomfortable and awkward” and “scared and creepy”.
136In late 2015 and continuing into 2016, Child C attended eight counselling sessions at Relationships Australia with the aim of re-establishing her relationship with the husband. The husband asserted that there was never any offer made by Relationships Australia to attempt to get he and Child C to see one another again.
137In April 2016, Child C began therapeutic counselling with Ms G.
138On 6 April 2016, orders were made by consent that the husband spend supervised time with Child C with the support of the Perth Children’s Contact Service (“PCCS”).
139On 30 April 2016, a contact visit between the husband and Child C was attempted. The PCCS visit report records that “Due to the child’s age and her strong responses when asked to come to her father I decide to seek the father’s input about ending the visit. [Mr Merla] was of the same mind. To end the visit due to lack of co-operation”. It subsequently emerged that Child C had contacted the wife during the visitation and sent her text messages requesting “GET ME OUT OF HERE NOW!!” and the wife advised Child C to talk to the visitation supervisor. The wife accepted that her actions may have undermined the visit and reinforced Child C’s fear of the husband.
140There is no doubt that the wife’s feelings towards the husband have tainted Child C’s perspective of her father and thus their relationship, however, this is but one factor that has led to their estrangement.
141Earlier in these reasons I referred to the initial position taken by the single expert Mr C. He had prepared a report in December 2015. He noted an immediate limitation in his report in that:
[Child C] could not be formally assessed due to her refusal to speak with me. From what I observed she presented as immature in regards to her lack of emotional regulation but also in her obvious disregard for her mothers authority or the context she was in. Indeed, she appeared to find her anti-social behaviour funny and was quite comfortable presenting herself as ‘childish’ in the sense she would make small noises and hide her face behind her mother or under her hair so as to avoid eye contact or having to interact.
142Of the dynamics between the parties Mr C observed that the dispute between them “is significant and easily observed by the children”. He observed:
[Ms Merla] holds an extremely negative view of [Mr Merla]. She stated that he took no responsibility for parenting when they were together and was a generally absent father. Specifically, she highlighted how he would leave the parenting to her and “would let the kids roam”. She described him as very controlling and sought to dominate or further control her via manipulation of the children. For example, she stated that [Child C] “is his prize” and he “is a bully”. By way of highlighting how petty and pervasive [Mr Merla’s] need for control can be, she gave examples such as “he would move things around that I organised knowing how it would upset me”.
The overall impression [Ms Merla], then, gives about [Mr Merla] is that he is, and was, a poor parent and an abusive partner. Based on the statements and comments made by [Child C] in her Facebook exchange with her father it seems very likely she has, at least partially, taken on this narrative and negative view of her father. The boys, however, clearly discount their mother’s views and seem to hold little regard for parenting or stability as an information source. As a consequence of this, they do not share their mother’s negative view of their father.
143In his assessment of risk Mr C observed:
[Ms Merla] sees [Child C] as vulnerable and traumatised due to being abused by her father’s aggressive and controlling behaviour. She sees [Child C’s] attachment to her to be a result of this and excuses or minimises [Child C’s] behavioural issues accordingly. I did not find this analysis to stand up to observation or the evidence at hand. Again, though, I suspect this narrative fits [Ms Merla’s] needs to have an interpretation of [Child C’s] behaviour that allows her to avoid a closer examination of her own role in [Child C’s] conduct. It also allows [Ms Merla] to sustain a specific view of [Mr Merla] and herself.
144Mr C further opined:
[Child C’s] development appears to be at risk in her mothers care due to the alignment that has been fostered on maladaptive and dysfunctional boundaries and parenting norms.
145He concluded that based on the information he had received from Child B and Child A that Child C’s behaviour had “significantly regressed in her mother’s care”, a factor that he observed the wife “seems to acknowledge … but to explain this she has blamed Child C being ‘traumatised’ or scared of her father”.
146At the time that Mr C provided his report he concluded that Child A was “strongly aligned with his father”, although he was clear that “he did not dislike his mother”, with Child B reporting in a similar way.
147He further reported:
Overall, the boys felt their father was reasonable, calm and logical in dealing with them. They clearly believed they were safer in his care. Conversely, they felt their mother was prone to aggression, untrustworthy and not able to parent with logic, follow through or balance.
148As to Child C he reported:
[Child C] was observed on two occasions but refused to be interviewed. Her Facebook exchanges with her father, and comments made by her brothers, indicate that she currently has an extremely negative attitude towards her father. Her behaviour towards her mother though, is more complex. She clearly wishes to stay in her mothers care but her behaviour indicates she has little value or respect for her authority at all and, if anything, seems to find her attempts to parent as humorous.
It is difficult to conclude the accuracy of my conclusions about [Child C’s] views and attitudes towards her parents, as she refused to be interviewed on both occasions. I would note that I found both boys to be accurate reporters and both stated that [Child C] did not have a negative attitude of her father prior to their parent separation. Furthermore, both gave accounts of a highly dysfunctional relationship between [Child C] and their mother where [Child C] gains significant freedoms and opportunities, such as daily access to [the motorcycle], by aligning with her but she has minimal regard for her mother outside of personal gain. The boys accounts to seem to match the dynamics I observed.
149In support of his conclusion Mr C opined:
Overall, and to summarise, there is a good deal of evidence that [Ms Merla’s] narratives are inaccurate and self focussed. Given her accounts of [Mr Merla] are highly critical and [Child C’s] behaviour towards her father is reported and, seemingly, extremely negative due to these accounts and claims, I think it important to summarise how inconsistent with the evidence the allegations seem to be. I have done this below;
326Overall the s 75(2) factors prevail in favour of the wife, however not significantly.
Discussion and terms of the order
327I propose to order that the husband discharge to the exoneration of the wife the balance of the joint debt arising from the shortfall in the proceeds of sale of the former matrimonial home and that otherwise each of the parties are responsible for their own debts without calling upon the other to contribute thereto.
328I propose that the joint superannuation assets of the parties be equalised in light of the uncertainty of the financial futures of either of the parties.
329Given that I hold the view that it is highly likely that either of the parties, if not both of them, may ultimately face bankruptcy, they will each have varying responsibilities in terms of supporting the children of the relationship and their financial capacities respectively to contribute to the child or children in the care of the other will be reflected in any assessment of child support.
330The balance of the assets held by the parties are, with all due respect to the parties, of little significance.
331I am not satisfied that notwithstanding the husband’s greater initial financial input to the relationship that the circumstances now prevailing before the Court warrant any adjustment in his favour and to the extent that it may have been argued that such an adjustment could have been just and equitably made, the same is offset by the s 75(2) factors that prevail in favour of the wife.
332Insofar as the superannuation split is concerned the wife seeks no greater than 50 per cent, although she argues that the husband should be liable for the parties’ joint debts. He is to be by virtue of my proposed order and the wife will continue to be liable for the debts that she has incurred.
333Since these proceedings were originally reserved to judgment, the Court has received evidence that the husband has obtained a redundancy payment, which he has effectively settled upon his mother. Whilst the indebtedness to the husband’s mother was not challenged by the wife, there is no evidence before the Court as to the necessity to prioritise the same.
334The husband continues in his gambling without accounting therefor.
335The husband has not discharged his child support debt.
336The redundancy payment received by the husband is appropriately taken into account in determining what is a just and equitable order, as the entitlement to such redundancy relates to the accumulation of service or arises from service undertaken by the husband during the course of the parties’ relationship.
337The wife is left in a significantly inferior financial position to that of the husband and the dimension of that discrepancy has particularly arisen since the husband received his redundancy payment.
338The wife has sought and obtained an emergency payment from her superannuation fund and the parties’ respective superannuation interests are now $391,831.57 as at 15 May 2017 for the husband and $12,985.87 as at 30 June 2017 for the wife.
339Whilst the husband now informs the Court that he has elected to return to study as [an accountant] and does not anticipate any income in the immediate future, there is little doubt, in my finding, that the husband’s earning capacity, as evidenced during the course of the parties’ relationship, significantly exceeds that of the wife and is likely to do so in the future. Thus the husband is likely to generate a greater future financial resource through his superannuation.
340Notwithstanding the $10,000 reduction in the wife’s superannuation account and the parties’ joint indebtedness, I am satisfied that when considered as against the position as presented in the parties’ papers for the judge as to their financial position at the commencement of the trial and taking into account in particular the redundancy payment received by the husband, that it is just and equitable that the husband be ordered to assume sole liability for the shortfall on the parties’ mortgage upon the sale of the former matrimonial home as identified above. Further, that there should be a splitting payment within the husband’s superannuation account to equalise the superannuation entitlements of the parties.
341The payment is calculated thus:
Husband’s superannuation at 15 May 2017 $391,831.57
+
Wife’s superannuation at 30 June 2017 $12,985.87
=
TOTAL$404,817.44
1/2 =$202,408.72
Less amount of superannuation held by the wife = $189,422.85
Amount of splittable superannuation splitting
payment due to the wife $189,422.85
The wife’s spousal maintenance application
342As seen, the wife sought an order that the husband pay her spousal maintenance in an amount as determined by the Court.
343At trial the wife failed to specifically prosecute her claim, albeit that the wife’s capacity to earn is subject to the limitations I have observed above.
344The husband is currently unemployed and has limited financial resources aside from his superannuation entitlements. He currently has no capacity to make maintenance payments were they to be ordered.
345In the circumstances the wife’s application will stand dismissed.
The husband’s further application filed 23 May 2017
346The husband filed a form 2 application on 23 May 2017 seeking orders as follows:
1.That the conduct of the Single Expert Witness in this Case, [Mr C], in disclosing confidential information about this case to a member of the public, be referred to AHPRA.
347In support of the application the husband swore an affidavit the body of which was as follows:
2. During April 2017 (I cannot provide an exact date as I no longer have my old phone and SMS history) a friend of mine, [Dr P], advised me he was aware of video evidence submitted as evidence in this case.
3. I believe this admission from [Dr P] to have been accidental in nature.
4. I had never discussed this with [Dr P] and [Dr P] was not in court when video evidence as part of an affidavit was submitted to the court by the ICL in this case, [Ms C].
5. When I pressed [Dr P] he admitted to me he had been told about this video evidence during a phone call he had with [Mr C].
6. I accept [Mr C] may have been acting in what he thought were my best interests but I do not accept it was his choice to discuss confidential aspects of my case with anyone else.
7. As per the correspondence in Annexure "A" I invited [Mr C] to tell me what information he had disclosed regarding this case. The response shows he was not prepared to state he had disclosed confidential information regarding this case with [Dr P].
348The annexure was an email chain commencing on 17 May 2017 as follows:
On Wed, May 17, 2017 at 6:03 PM, [Mr Merla] <[email address]> wrote:
[Ms C], [Mr C],
It has come to my attention that one or both of you have discussed confidential aspects of my court case with at least 1 person who is not a part of this case.
This sharing of information has been done either face to face or over the telephone or both.
I would like an explanation as to:
1. why this has occurred and
2. what information was shared and with whom.
It is my belief I am owed that simple explanation. As such I am requesting a meeting with you both where that explanation can be given to me.
Please let me know within 7 days if you are prepared to meet to discuss this matter.
Please also note my new telephone contact number below.
Regards,
[Mr Merla][XXXXX XXXXX ]
On Thu, May 18, 2017 at 5:54 PM, [Mr C] <[email address]> wrote:
Dear [Mr Merla],
I have reflected and gone over what you could be referring to and all I can think of is the meeting with [Dr P] that [Ms C] has outlined below. Whilst a great deal was said in this meeting we were both conscious of not revealing any case details or private information about your case or any other and, indeed, my memory is that at the outset it was stated we could not discuss details about your case even though we understood/assumed [Dr P] would know a great deal about it and may reference it. My recollection of the conversations had was that the discussions were at the broad and systemic level and as such I can not think of how case information may have even come up.
The only other occasion I spoke with [Dr P] was when he contacted me as he was very worried that you may be about to harm yourself due to some facebook posts as I recall and sought my assistance. This was a brief call and I do not recall a great deal of what was said due to the urgency of the topic, other than explaining and determining with [Dr P] what action I felt i could take and my concerns that I may actually worsen the situation by contacting you given I was not sure you viewed me in a very positive light at the time. As you recall I then texted you (as I was not certain if my contact would be welcome) and then communicated your answers back to [Dr P] by text so as to facilitate him supporting you in some way.
This is the total of my communications with [Dr P] that may be relevant and I can not think of any details I may have given that were case specific.
I see [Ms C] outlined to you that we have tried to listen to the issues that [Dr P] (and you) have raised about the process, it's limitations and part to play in dynamics becoming dysfunctional and entrenched.
I realise this may give you little comfort and, indeed, may make you angrier but I hope you can see by the fact we met with [Dr P] and formed a group of our own that we are genuine in our desire to try to improve the system and our roles in it. I am not saying we have the answers but we are acknowledging there is work to be done and trying to do something about it.
I hope this addresses your questions and I wish you the best for the future [Mr Merla]
Kind regards,
[Mr C]
On Thu, May 18, 2017 at 7:16 PM, [Mr Merla] <[email address]> wrote:
[Mr C],
Unfortunately this does not address my concerns. A serious breach of confidentiality has occurred in this case. [Dr P] (inadvertently) let something slip about my case which I had not ever discussed with him.
I am still requesting a meeting.
If that is not possible then my course of action will be to pursue this via FCWA to request the matter be referred to AHPRA.
You would be right that I am still angry - at the fact that your second report is such a travesty of justice for my daughter and, by extension, me. And this report comes on top of you describing [Ms Merla] to me as a pathologically incapable parent, which I note you have never acknowledged.
It would be hard for anyone to read the two reports produced and accept they are talking about the same case.
However the majority of my anger comes from this: I believe that you know the impending orders are a bad outcome for everyone involved but you were not prepared to stand up and be counted when it mattered. I believe you backtracked and reversed your opinions simply to try and get this case out of the system. And as a result my daughter continues to grow up without a father in her life.
[Ms C] today advised me to read the MANDEL v BLUM decision published last month. I believe that decision rewards alienators who can stay the course. The similarities between that case and mine are not coincidental. There are others decisions published by FCA which basically read the same. There is mounting trial evidence that alienation is real (without any gender bias). My hope is that one day you or one of your colleagues will actually produce an opinion that states how real and how dangerous it is.. That way the Moncrieff’s of this world will be held to task when they state 'Alienation is a term that has been largely disabused.'
However that is all an aside and your reports are just one of the factors I am still weighing up in deciding whether or not to proceed with an appeal.
At this point I would simply like to know: if you are prepared to meet with me,
Regards,
[Mr Merla][XXXXX XXXX]
From: [Mr C]
Date: Mon, 22 May 2017 15:49
To: [Mr Merla];
Cc: [Ms C];Subject:Re: Professionalism
Dear [Mr Merla],
I will not comment on my reports I believe they are self explanatory. The correct place for you to transparently and objectively address those concerns is in court where my assessment could have been tested.
In regards to meeting with you. It is my understanding that you are stating that if we do not meet with you to explain what we have already stated in our emails then you will refer your complaint to the Family Court. This is your prerogative and the correct way for this matter to be assessed in a transparent and open fashion if believe such action is necessary. I have given my recollections and explanations and stand by what I have stated.
In addition to this being the correct way to address your allegation there are a number of other reasons not to meet, Firstly, both you and [Dr P] have clearly and strongly held critical views of the court and you have written aggressive and personal emails to both myself and [Ms C]. I can not rule out that you are not engaging in some form of collusion in an attempt to do harm to myself or [Ms C]. Secondly, by having this meeting it could be interpreted as implying guilt or be used in some way as a part of your appeal process. Thirdly, there is no reason why after such a meeting you would not proceed in taking action anyway as you may still feel negatively towards [Ms C] and myself and seek a formal process be instigated. Lastly, I have on two occasions gone beyond my role as an SEW motivated by concern for your welfare. On both these occasions I have placed myself in a position to be accused of bias towards you or acting in a fashion not mandated by the court. To again place myself in such a context would be foolhardy and something that I believe the court would view as some form of admission of guilt or unprofessional conduct on my behalf given the allegations you are making and my history of going above and beyond my role on your behalf.
In the interests of transparency and for the record, [Dr P] has recently emailed and indicated that he hoped ongoing communication would be possible in regards to the topic he, [Ms C] and I discussed in our meeting. I have not responded to him and will inform now him that I intend to have no further communication with him until this matter is resolved one way or the other as I will not be drawn into any further exchanges, no matter if [Dr P’s] intent is genuine or not, where accusations can be made based on those interactions.
I will leave it with you to take the action you see fit and appropriate.
Regards,
[Mr C]
[email address] <[email address]>
Mon, May 22, 2017 at 4:48 PM
To: [Mr C] <[email address]>Cc: [Ms C] <[email address]>
[Mr C],
You might recall that when trial concluded I was in no fit state to run any kind of legal case.
I would have preferred a conversation but as you are not prepared to meet I will lodge an application with FCWA tomorrow asking that this case be referred to AHPRA. The basis of my application is that you have breached confidentiality by discussing video case evidence with another party.
It does not relate in any way to the meeting [Dr P] had with you and [Ms C].
Regards,
[Mr Merla][XXXXX XXXXX ]
349The references in the affidavit and the email to Dr P are references to the individual that the husband sought to have appointed as his “McKenzie friend” on the first day of the trial. For the reasons I gave at the time, as I have observed, I dismissed his application. It became apparent, however, that notwithstanding the fact that the application had not yet been heard or determined that the husband had taken it upon himself to provide to Dr P a copy of the single expert report prepared by Mr C, specifically in breach of the consent orders made on 7 August 2015 which provided that:
10.… the parties and the independent children’s lawyer be restrained and an injunction is hereby granted restraining each of them from providing copies of any single expert’s report prepared for the purpose of these proceedings, or permitting any other person to do so, to any person or entity other than their solicitor or counsel in these proceedings, without first obtaining leave of the court.
350Further, as is apparent from the emails, Dr P has been privy to information provided by the husband in relation to these proceedings and also sat through the first five days of trial in the body of the court.
351There is no evidence, other than that offered by way of conclusion, which is admissible to an extent that it would have persuasive weight that Mr C had breached any confidentiality or made any disclosure outside of that contemplated by the husband.
352When the matter was before the Court on 29 June 2017 I asked the husband whether there was any further evidence he wished to adduce in support of his application and he indicated there was not.
353On the basis of the evidence before me, I am not satisfied that the same is such that it would be safe to conclude a breach has occurred that would warrant referral to the Australian Health Practitioner Regulation Agency and I decline to do so.
354The application will accordingly stand dismissed.
Proposed orders
Child-related orders
1.All orders relating to the children, [CHILD A] born [in] 2000, [CHILD B] born [in] 2002, and [CHILD C] born [in] 2005, (“the children”), be and are hereby discharged.
2.The children communicate, spend time and live with the parties, in accordance with their wishes.
3.The parties have equal shared parental responsibility for the children [CHILD A] and [CHILD B] and the wife have sole parental responsibility for the child [CHILD C].
4.Both parties be listed on school enrolment forms and as emergency contacts at any school attended by the children.
5.Any school attended by the children be at liberty to release to either party at their request and expense, copies of the children’s school reports, school photo order forms, attendance records, behavioural records or reports, school newsletters or any other information of a kind that would ordinarily be provided to parents.
6.Both parties be at liberty to attend parent-teacher meetings, school events, assemblies, sports carnivals and extra-curricular activities the children are participating in, provided they do not approach or attempt to communicate with the other party, unless with the other party’s prior written consent.
7.Both parties promptly notify the other of all extra-curricular events the children are participating in from time to time, with said notice to include the time, date and venue of the events.
8.Both parties ensure the other is aware of their current contact details, including their home address, mobile number and email address, and forthwith notify the other should any of those contact details change.
9.Save in the case of a serious medical emergency where the parties have liberty to speak directly to one another, all other communication between the parties is to be in writing via text or email and must be courteous and respectful.
10.Both parties forthwith notify the other should any of the children suffer any serious health issues or require urgent medical treatment while in their respective care, including but not limited to attendance at the Emergency Department or admission to hospital, and authorise any medical practitioner treating the children to release all relevant information about the children’s medical treatment and health to the other party.
11.In the event any of the children have appointments with medical specialists, allied health professionals or psychologists, the party making the appointment is to provide written notice to the other party of the appointment details, which is to include the purpose of the appointment, the name of the professional seeing the child and the appointment date and time, with said notice to be provided within 48 hours of the appointment having been made.
12.In the event any of the children are hospitalised, both parties be at liberty to attend and spend time with that child whilst in hospital.
13.Both parties be restrained and an injunction is hereby granted restraining each of them from:
(a)denigrating the other party to the children or in the children’s hearing;
(b)speaking with, or questioning the children, about any of the allegations or issues raised during the course of the Family Court proceedings, including matters to do with each party’s addiction issues and mental health; and
(c)discussing the Family Court proceedings, or issues concerning the welfare of the children, or disseminating any documents filed or correspondence exchanged during the Family Court proceedings, on Facebook or any other social media platform.
14.Without admission as to need, the wife be restrained and an injunction is hereby granted restraining her from physically disciplining or physically restraining the children.
15.The children [CHILD C] and [CHILD B] attend upon psychologist [Ms G] for therapeutic counselling at a frequency recommended by [Ms G], with the cost of [CHILD C’s] and [CHILD B’s] therapy to be shared equally between the parties.
16.Both parties be restrained and an injunction is hereby granted restraining both of them from taking [CHILD C] or [CHILD B] for counselling with any therapist except [Ms G], save with the prior written consent of the other party.
17.In the event both parties agree to a change in therapist for [CHILD C] or [CHILD B], they be at liberty to provide the new therapist with a copy of [Mr C’s] Single Expert Witness report and review assessment report (“[Mr C’s] reports”).
18.The Independent Children’s Lawyer be at liberty to provide a copy of [Mr C’s] reports to the Department of Communities, [Ms G] and any therapist working with either party.
19.The parties be at liberty to provide [CHILD B’s] paediatrician with a copy of [Mr C’s] reports.
20.In the event any issues arise with any of the children and the Western Australia Police, including but not limited to being referred to the Juvenile Justice Team or appearing in the Perth Children’s Court, [Mr C] be at liberty to speak with, and provide information to, the relevant persons about his assessment of their family system, and how this has impacted on such child’s wellbeing and development.
Financial orders
21.Henceforth the husband shall indemnify and hold the wife forever indemnified for any payment due to the ANZ Home Loan [XXXXX XXXXX XXXXX ].
22.In accordance with s 90MT(1) of the Family Law Act 1975 (Cth) (“the Act”), the base amount of $189,422.85 be allocated to the wife in respect of the husband’s superannuation interest in the AustralianSuper Superannuation Fund (“the Fund”) and pursuant to s 90MT(1)(a), whenever a splittable payment becomes payable in respect of that interest, the wife is entitled to be paid the amount to be calculated in accordance with the Family Law (Superannuation) Regulations 2001 (Cth) (“the Regulations”) in respect of that base amount and there is a corresponding reduction in the entitlements of the husband.
23.The Trustee of the Fund (“the Trustee”) do all such acts and things and sign all such documents as may be necessary to:
(a)calculate, in accordance with the requirements of the Act and the Regulations, the entitlement awarded to the wife in the preceding paragraph; and
(b)pay the entitlement whenever the Trustee makes a splittable payment from the husband’s interest in the fund.
24.Paragraphs 22 and 23 herein bind the Trustee of the Fund and these orders take effect from the operative time, being the fourth business day after the date of service of these orders upon the Trustee.
25.The parties do all things necessary and comply with all requests from the Trustee of the Fund and sign all necessary documents to effect a splittable payment and roll over in accordance with these orders.
26.The parties otherwise retain the assets in their respective names and possessions.
27.The parties otherwise retain all debts in their respective names and indemnify the other in relation to such debts.
Other
28.The wife’s application for spousal maintenance be and is hereby dismissed.
29.The husband’s form 2 application filed on 23 May 2017 be and is hereby dismissed.
30.All outstanding applications and responses otherwise be and are hereby dismissed.
Procedural fairness as required for superannuation splitting orders
355Given the difficulties that the parties may have experienced in drafting superannuation splitting orders and providing the relevant trustee with procedural fairness, I have caused my draft orders to be provided to the trustee of the relevant fund, and the trustee’s approval as to form has been accepted. The trustee has also accepted that it has been provided with procedural fairness, as contemplated in the Act.
I certify that the preceding [355] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
29 November 2017
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