NASIF and DUVAL
[2022] FCWA 46
•17 MARCH 2022
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: NASIF and DUVAL [2022] FCWA 46
CORAM: DUNCANSON J
HEARD: 16 FEBRUARY 2022
DELIVERED : 17 MARCH 2022
FILE NO/S: [Redacted]
BETWEEN: MR NASIF
Applicant
AND
MS DUVAL
Respondent
Catchwords:
CHILDREN - interim parenting orders - turns on its own facts
Legislation:
Family Law Act 1975 (Cth)
Category: Reportable
Representation:
Counsel:
| Applicant | : | Mr J Hedges SC |
| Respondent | : | Ms P Giles SC |
| Independent Children's Lawyer | : | Ms E Walke |
Solicitors:
| Applicant | : | Fahey Mwenda D'Adamo |
| Respondent | : | Kim Wilson & Co |
| Independent Children's Lawyer | : | Legal Aid WA |
Case(s) referred to in decision(s):
Marvel v Marvel (2010) 43 Fam LR 348
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
IT IS NOTED that publication of this judgment by this Court under the pseudonym Nasif and Duval has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
1These proceedings concern the four children, [Child A], [Child B], [Child C] and [Child D]. Their parents, [Mr Nasif], the father and [Ms Duval], the mother are unable to agree about the children's arrangements.
2The eldest child, Child A is 14 years old and attends [School A]. Child B turn 12 this year and attends [School B]. Child C will turn six this year and attends pre-primary, also at School B. Child D will turn four this year and attends kindergarten.
3The parties had a religious marriage ceremony in [Country A] in 2005 and were married in Australia [in] 2014. They separated finally [in] 2019. Since separation, the children have lived with the mother and spent time with the father as set out below.
4In her case information affidavit, the mother made allegations of family violence perpetrated by the father against her and the children. She deposed that Child B and Child C may have been potentially sexually abused by the father or while in his care, although subsequently, she deposed she had not suggested that the father had sexually abused Child C. The father denies the allegations made by the mother against him. The mother expressed concern about Child B's behaviour after he spent time with a paternal relative during which he built [an electronic device]. The father deposed he supervised this time at the mother's request and building the electronic device was a proud moment for Child B. He deposed that Child B was not upset while spending time there.
5The father is concerned that the mother has influenced the children against spending time with him and that she is involving the children with a growing number of medical practitioners and health professionals.
6On 8 July 2021, the [Magistrate] provided reasons for his decision and pursuant to those reasons, orders were made that:
3.Until further order, the children, [CHILD A] born [in] 2008, [CHILD B] born [in] 2010, [CHILD C] born [in] 2016, and [CHILD D] born [in] 2018, spend time with the Applicant, [MR NASIF], on the following terms:
(a)such time to be supervised by a privately funded agency, as agreed between the parties;
(b)subject to the availability of that agency, the children, [Child A] and [Child B] spend time with the Applicant on each alternate Saturday from 10.00 am to 2.00 pm, commencing 17 July 2021; and
(c)subject to the availability of that agency, the children [Child C] and [Child D] spend time with the Applicant on each alternate Saturday from 10.00 am to 12.00 noon, commencing 24 July 2021.
7The children spent time with the father on a supervised basis pursuant to the said orders dated 8 July 2021. The supervisors were [Supervision Service A] who provided a report dated 7 October 2021 in respect of visits between 17 July and 2 October 2021. Supervision Service A also provided a report dated 30 January 2022 in respect of visits from 9 October 2021 to 22 January 2022.
8There were some minor incidents of difficulty during the visits, for example, an occasion when Child B did not wish to attend, an occasion where Child A showed her father something on her phone of which he did not approve, and another occasion when Child D had a fall in the presence of the supervisor. Overall, however, the visits were largely successful. The reports from Supervision Service A were in favourable terms. The mother agreed with the Independent Children's Lawyer's ("ICL's") preliminary view that the older children's time with the father could move to being unsupervised, but the younger children's time with him should remain supervised pending publication of [Mr A's] report.
9The mother denied she was unhappy with the service provided by Supervision Service A but raised some concerns about the venues. Subsequently, after reading Supervision Service A's updated report of 30 January 2022, the mother referred to several incidents which concerned her in relation to the father's interactions with Child A and Child B. Nevertheless, it was her position that Supervision Service A should continue to supervise the younger children's time with the father.
10Mr A, clinical psychologist, was appointed single expert witness on 11 October 2021. Interviews have yet to take place, including with the mother in April 2022.
11The proceedings came before the Court on 1 February 2022. It was ordered by consent that pending the adjourned hearing:
1The children, [Child A] and [Child B] spend time with the father;
(a)each alternate Saturday from 9am to 3pm, commencing on 5 February 2022;
(b)each intervening Thursday, commencing on 10 February 2022, from after school with the father to collect the children from school, until 7pm.
2The children, [Child D] and [Child C], continue to spend time with the Father in accordance with the orders of 17 June 2021, supervised by [ Supervision Service A].
12These interim proceedings primarily concern the time the children should spend with the father, pending the publication of Mr A's report. The proceedings also concern other miscellaneous matters as set out below.
13The orders sought by the father are contained within his minute of interim orders sought filed 1 February 2022. The father proposes that all previous orders in relation to the time the children spend with him and in respect of supervision by Supervision Service A be discharged. The father proposes that the children spend time with him in accordance with three alternatives as set out in that minute. In summary, those are as follows:
•Alternative 1, the father spends time with all of the children each alternate weekend from after school Friday until 3:00 pm Sunday, and each intervening week from after school Thursday until the following morning, and such other times as may be agreed.
•Alternative 2, the father spends time with Child A and Child B as above, and with Child C and Child D each alternate weekend from after school Friday until 3.00 pm Saturday and each intervening week from after school Thursday until 6.00 pm that day.
•Alternative 3, the father spends time with Child A and Child B as set out at alternative 1 above, and with Child C and Child D from 10.00 am until 6.00 pm each alternate Saturday and each intervening Thursday from 3.00 pm until 6.00 pm that day.
14The father proposes that the children spend time with him during the 2022 April school holidays, in respect of Child A and Child B on a week about basis, and with Child C and Child D in accordance with alternative 1 or 2 above, which is each alternate weekend from Friday to Sunday and each intervening week from Thursday to Friday, or each alternate weekend from Friday to Saturday and each intervening Thursday from 3.00 pm to 6.00 pm.
15The father proposes that the children spend time with him on each of the children's birthdays from after school until 6.00 pm, if a school day, or 3.00 pm to 6.00 pm if a non-school day. He proposes handover take place at [Library A], the children's respective schools, or such other locations as may be agreed.
16The father proposes that if the Court considers that Child C and Child D's time with him and/or the handovers are to be supervised, then pending further order, his sister [Ms Nasif], ("the paternal aunt") should supervise his time with them.
17The father seeks an injunction restraining the mother from:
•attending on any medical practitioner without consent, or order of the Court;
•discussing her allegations of abuse with the children or within their hearing;
•discussing the proceedings with the children or within their hearing;
•denigrating the father in the children's presence; and
•allowing any third party to do any of the above things.
18The orders sought by the mother are contained in a minute of proposed orders filed 28 January 2022. The mother proposes that the orders dated 8 July 2021 be discharged insofar as they relate to supervision of Child A and Child B's time with the father. She proposes that they spend unsupervised time with him from 10.00 am until 2.00 pm each alternate Saturday.
19After the mother filed her minute of proposed orders, on 1 February 2022 interim orders were made by consent pending the adjourned hearing, that Child A and Child B spend time with the father each alternate Saturday from 9.00 am to 3.00 pm and each intervening Thursday from after school until 7.00 pm.
20The mother seeks an injunction restraining the father from allowing Child A and Child B to have contact with members of his family or friends without her written consent.
THE ISSUES FOR DETERMINATION
21The issues for determination include the following:
•the time Child A and Child B spend with the father;
•the time Child C and Child D spend with the father;
•whether Child C and Child D's time with the father and/or the handovers should be supervised;
•if supervision is required, whether the supervisor should be Supervision Service A or the paternal aunt;
•the time the children spend with the father in school holidays and on birthdays;
•the injunction sought by the father that the mother be restrained from attending upon any medical practitioner or other health professional with the children without his agreement or that of the ICL or the further order of the Court;
•whether the father can take the younger children to his place of residence;
•the injunction sought by the mother that the father be restrained from allowing Child A and Child B to have contact with members of his family or friends without the mother's consent (and presumably Child C and Child D if they spend time at his home); and
•the injunction restraining the father from feeding Child B any food that contains [Ingredient A], or any other ingredient the mother notifies causes an allergic reaction.
22The injunctions in 5(b), (c), (d) and (e) of the father's minute are agreed, to be mutual and without admission as to need. The location of handovers is also agreed.
The father's position
23The father's primary position is that all four children should spend time with him in accordance with the first alternative proposed in his minute filed 1 February 2022, namely that they spend time with him each alternate weekend from after school Friday to Sunday, and from after school Thursday to Friday morning in each intervening week.
24For the purposes of this interim argument and pending receipt of Mr A's report however, the father concedes that the time Child A and Child B spend with him should be separate to the time Child C and Child D spend with him.
25The father's position is that supervision is not necessary, however should the Court decide otherwise, he seeks that the paternal aunt supervise the younger children's time with him. He seeks to extend that time and to spend the time with the children at his home. The father opposes an injunction that he be restrained from allowing any of the children to have contact with members of his family or friends during their time with him without the mother's prior written consent.
26In her affidavit filed 14 June 2021 the mother deposed she had not suggested that the father had sexually abused Child C. However, she maintains her concerns about the paternal relative. With respect to Child C's behaviour, senior counsel for the father referred to the Magistrate's finding that there were numerous medical opinions that Child C [struggles with sensory processing].
27As to family violence, senior counsel referred to paragraph 109 of the Magistrate's reasons, where his Honour noted that the mother obtained a family violence restraining order [in] December 2020, and at about that time she insisted on attending with the children when they spent time with the father. Senior counsel submitted this effectively caused the father to be in breach of the family violence restraining order at the mother's request, after which, his time with the children was suspended for five months.
28Senior counsel referred to the Supervision Service A reports which he described as "glowing" in relation to the father's ability to provide appropriate parenting for the children. He submitted these reports should give the Court confidence that the father poses no risk and there has been no risk to the children in his care.
29Senior counsel referred to the incident during supervised time where Child B had an allergic reaction to an ice cream which contained Ingredient A. The father immediately recognised Child B's reaction and pre‑emptively left the supervision centre to get medical assistance which remedied that reaction. Senior counsel submitted the father could not have done better in the circumstances and yet he was criticised for it.
30The father submitted that if supervision of the younger children's time with him is required, the paternal aunt should be the supervisor. She [works with children], is married and has three children of her own. One of her children has remained in contact with Child A through [social media], and another of her children and Child B continue to play video games together online.
31It was submitted the paternal aunt would appropriately supervise the children's time with the father, and she is capable of being protective of the children if necessary. It was suggested that there could be difficulties at handover, particularly with Child C. Senior counsel submitted the paternal aunt, as a family member and [someone who works with children], would be able to manage such situations.
32The father expressed concern that the mother had not consulted him prior to moving the children from their place of residence temporarily.
33In relation to the injunction sought by the father restraining the mother from taking the children to medical practitioners without his consent, the father is concerned that the mother is involving the children with a growing number of health professionals. He [works in healthcare] himself and wishes to be informed in advance and have input as to proposed treatment.
The mother's position
34Senior counsel for the mother referred to a recent visit where Child A asked if she had a choice and then went with the father and had a good time. Against this background, senior counsel submitted any allegation that the mother had alienated the children against the father could not be supported.
35The mother's primary position is that until she sees Mr A's report, she does not support any time between the younger children and the father. She says if the Court takes a different view, that time should be supervised by the current agency.
36Senior counsel referred to the involvement of Supervision Service A in handover and that agency's track record of having been able to entice Child C into spending time with the father. Senior counsel submitted the affidavit of the paternal aunt demonstrated no appreciation of what is involved in supervising time for children in circumstances of high conflict. It was submitted that the position of supervisor would place the paternal aunt in a position of conflict, for example in relation to her onerous reporting duties, possibly in a critical way of her brother.
37The mother deposed as to further disadvantages of the proposal including that the paternal aunt is not independent of the father, she has a limited relationship with the younger children and that the mother and the paternal aunt have not seen each other for some considerable time. Senior counsel submitted the mother is highly anxious and she would have little confidence in either the independence of the paternal aunt or her relationship with the children.
38It was submitted that the children have had a good experience with Supervision Service A, and this is preferable to "rocking the boat" by introducing the paternal aunt as supervisor, who is untrained in that regard.
39In relation to the injunction sought by the father, senior counsel referred to the Magistrate's reference to the mother's undertaking not to take the children to any further medical appointments without the father's consent. Having regard to the mother's undertaking, it was submitted the injunction sought by the father was not necessary. [Hospital A] sent a letter to the parties regarding a specialist appointment for Child C. The mother was not staying at the family home at that time and the father received notification of this appointment before the mother. Senior counsel submitted this was an indication that the mother had provided the father's details to the hospital and ensured his involvement in the process.
40It was the mother's understanding that [Dr B], a paediatrician that Child C had previously attended upon, had left Western Australia, and was not returning. The mother now understands that Dr B has returned or is at least available for consultation, and an appointment has been made for Child C to attend upon her [this year]. The mother is concerned by Child C's behaviour and is doing what she can to obtain treatment, while complying with the undertaking she has given to the Court. It was submitted that in these circumstances the injunction sought by the father is not necessary and, in any event, would prevent the mother from taking the children to any routine appointments for mild ailments.
41The mother referred to the orders made on 1 February 2022. She seeks to maintain those orders in respect of the time Child A and Child B spend with the father, and in respect of handovers. The mother seeks to maintain the injunction restraining the father from feeding Child B any food that contains Ingredient A or other ingredients which may cause him to have an allergic reaction.
The ICL's position
42The ICL submitted that an injunction concerning the parties' behaviour should be mutual without any finding and although there is no evidence to suggest that the mother has breached her undertaking, there is confusion as to the attendance on medical practitioners. The ICL submitted that paragraph 5(a) of the orders sought by the father should be amended to read "save and except in the case of an emergency or a routine appointment at the child's usual medical practitioner, and in the case of either of those things, notice should be given as soon as practicable."
43The ICL submitted the time the father spends with the children is to be primarily with each other and he is aware of the need for him to re-establish his relationship with the children. She submitted it is a matter for him to decide who comes into contact with the children when they are in his care. There should, in the interim, be a specific injunction in relation to the paternal relative who is the subject of the mother's concerns, and it would be appropriate for the father not to leave the children in the unsupervised care of any other members of his family or friends.
44The ICL was of the view that pending receipt of Mr A's report, the time the two older children spend with the father should be separate to that of the two younger children. Child A and Child B should continue to spend time with the father each alternate Saturday between 9.00 am and 3.00 pm and each intervening Thursday from after school to 7.00 pm in accordance with the orders made on 1 February 2022. This time should remain unsupervised.
45The ICL was of the view that handovers should be supervised by Supervision Service A, but otherwise the younger children's time with the father should be supervised by the paternal aunt and could be increased to up to six hours each alternate weekend, subject to her availability. The ICL described this as more normalised time and said it would be important for the children to become familiar with those arrangements. The younger children's time should simply continue each alternate weekend, and time on a school day should not be introduced pending receipt of Mr A's report.
46The ICL expressed concern at the mother's primary position which is that there should be no time. She found this concerning particularly in the light of the positive Supervision Service A reports and given that the evidence does not support the assertion that the children are at risk in the father's care, particularly if the paternal aunt is supervising that time.
THE CHILDREN'S BEST INTERESTS
47These are interim proceedings only. The parties have filed several affidavits and there is much evidence to consider. I am unable to make any findings of fact at this interim stage and that cannot be done until the evidence has been tested at a final hearing.
48In Marvel v Marvel (2010) 43 Fam LR 348 the Full Court considered the approach to be adopted when presented with contested evidence in an interim hearing: -
120.As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing: s 61DB.
49The children's best interests is the paramount consideration. To determine what orders are in their best interests, I must consider the primary and additional considerations as set out in the Family Law Act 1975 (Cth) to the extent that I consider them necessary and relevant. There is much contested evidence in these proceedings, and I can only therefore give limited consideration to these matters.
50It is to the benefit of the children to have a meaningful relationship with both of their parents.
51As to whether there is a need to protect the children from harm in the care of either party, no finding can be made at this stage. The parties' respective allegations are as set out above. Both parties deny the allegations of the other.
52As to the children's views, the ICL met with Child A and Child B [in] November 2021 and provided a letter to the parties the next day. The ICL noted Child A presented as a pleasant, articulate, and polite young person who was happy to speak with her and seemed to engage well in their discussion, although Child B was not prepared to speak or meet with her save for a brief greeting in reception.
53The ICL noted that Child A said nice things about the mother and described a good relationship with the father. Child A said things were "going okay" with seeing him at visits, and she loves both parents. Child A's current preference would be to live with the mother and spend time with the father. She did not consider supervision necessary, and in the future, she may consider a different living arrangement, particularly if her father lived closer to her school. Child A was of the view that it was beneficial that the two younger children's time with the father be separate to hers and Child B's.
54The evidence suggests there was some change in Child A's views after orders were made on 1 February 2022 that she and Child B spend time with the father each alternate Saturday from 9.00 am to 3.00 pm and each intervening Thursday after school. Child A did not attend the visit with the father on 5 February 2022 but did subsequently attend a visit on 10 February 2022. It appears that visit was a positive one as Child A asked the father to provide [a piece of furniture] for her and he agreed to do so. This would suggest she envisages returning to spend time with him.
55Child A is of an age where she can make her views known to her parents. I consider it is likely the father will be receptive to those views.
56Although I consider the older children's time with the father is quite limited, upon the evidence, I am not persuaded that I should order overnight time. I intend to order that the older children spend such other time with the father in accordance with their wishes, which will give them an opportunity to spend more time with him if they wish to do so.
57Child B appeared to enjoy his time with the father who has catered well for his interests by playing games with him and providing [equipment] for him.
58The younger children are too young to express any meaningful views, but the Supervision Service A reports would suggest they enjoy their time with the father.
59It is likely the mother provides well for the children's needs, although the father is critical of her involving the children with many health professionals. The father also expressed concern that she had discussed the change in arrangements with Child A and Child B and effectively discouraged compliance with the orders. The mother's initial allegations which included sexual abuse and family violence have yet to be tested. It appears she is a concerned and anxious parent as was evidenced by her reaction to Child D's fall in the presence of a supervisor. Although she was critical of some aspects of Supervision Service A, her view is that the younger children's time should continue to be supervised by that agency. The children are doing well, although Child C has some difficulties. The children enjoy their time with their father as reported by Supervision Service A and their reports indicate that he also provides well for their needs.
60The proposal of the father involves a significant change to the children's current arrangements, including a separation from the mother. I am not persuaded at this time that the evidence supports a change to their arrangements, such that they spend overnight time with the father, to be in their best interests. In this respect I may be assisted by Mr A's report and his assessment of the children's relationships with their parents.
61As stated above I am unable to make findings about many of these matters. I am satisfied however that the parties' relationship is a conflictual one and many important factual matters require a determination.
62I consider it is not appropriate that I apply the presumption that it is in the best interests of the children that their parents have equal shared parental responsibility for them in these interim proceedings.
DISCUSSION AND CONCLUSION
63I consider that the children Child A and Child B's time with the father should continue in accordance with the orders dated 1 February 2022, that is each alternate Saturday from 9.00 am to 3.00 pm and each intervening Thursday from after school until 7.00 pm. The evidence does not persuade me that the time should be extended or that overnight time should be ordered. I have had regard to Child A's views. I consider that the children enjoyed their visit with the father on 10 February 2022 and he catered well for them, for example by providing Child B with equipment and indicating to Child A she would be provided with a piece of furniture. Child A is of an age where she is concerned about interference with her other commitments, but it appeared that the father is understanding of and receptive to that.
64I propose to take the more cautious approach and await the outcome of Mr A's report before considering an extension to the time Child A and Child B spend with the father. I shall however include an order that they spend additional time with him in accordance with their wishes, provided the mother agrees to such time. The current arrangements enable the father to devote his time to Child A and Child B without the distraction of the younger children. In these circumstances the time is likely to be beneficial to the children and likely to enhance their relationship with the father. Child A and Child B appear to be faring well at this time and the stability of the current arrangements should, in those circumstances, be maintained.
65In relation to the younger children, I have formed the view from the Supervision Service A reports that the time they have spent with the father has been mutually enjoyable and mostly successful. The father has provided well for their needs during the supervised visits and has been able to give both children his attention and care. Overall, the reports of Supervision Service A are favourable. The matters raised by the mother as to the incidents in the second report are not of such concern that they would require any restriction to be imposed on the time. At this stage, Child C and Child D have only two hours a fortnight with the father. They are young children and I consider they would benefit from an extended period of time in his care. I agree with the ICL that time could be extended to up to six hours.
66The father's position is that supervision is unnecessary and that there is no evidence of risk to support the requirement for it. Although his primary position included overnight time, he said with respect to the younger children that the Court was not being asked to dispense with supervision. I am not persuaded that the requirement for supervision should be removed. Child C's behaviour is of considerable concern, and at this stage is unexplained. The Supervision Service A reports have provided an independent account as to events during the supervised time, but they are in mostly favourable terms and I am satisfied that there can be a reduction to more low-level supervision.
67I consider the paternal aunt to be a suitable person to supervise. The ICL wrote to the parties on 11 February 2022 reporting as to a telephone conversation she had the previous day with the paternal aunt. The ICL discussed the duties and responsibilities of a supervisor and provided her with a brochure in that regard. The ICL reported the paternal aunt appeared to clearly understand what her role would be and indicated she felt confident she would place the children's needs as a priority on any visits supervised by her. She works with children, [is] a member of the family, and has children of her own. She would be well placed to facilitate the younger children's time with the father and their relationship with him, and to deal with Child C and her behaviours.
68I do not consider it necessary to impose any restriction on the father as to family members and friends spending time with the children. If the younger children's time is increased to six hours there is opportunity for the children to be introduced to family and friends, without reducing the benefit of their time with the father. Similarly, Child A and Child B should have an opportunity of meeting paternal relatives including their cousins if they wish to do so.
69Although I will not have the benefit of an independent report from the supervisor, I am mindful that the reports received to date are extensive. The mother can be reassured that there is a female relative present throughout the younger children's time with the father. This would be appropriate until Child C's behaviour can be further investigated.
70As to obtaining medical treatment for the children, although the mother has already given an undertaking, I will make the injunction sought as I consider the issue to be of considerable importance. The injunction will be in clear terms as to what can and cannot be done. The mother is to be restrained from taking the children to see medical practitioners without the consent of the father. She is however permitted to obtain treatment for them in an emergency, or for routine ailments and that would not require the father's prior consent, but she should notify him of her intention to do so as soon as practicable. I propose to make a further order about the provision of medical information, which I consider also to be in the best interests of children. I will hear from senior counsel and the ICL in this respect.
71I do not consider it necessary to restrain the father by injunction from allowing Child B to have Ingredient A or other foods which may cause him to have an allergic reaction. The father is highly unlikely to do that deliberately, and on the occasion that Child B had an allergic reaction, the father behaved appropriately and took immediate steps to remedy the situation.
72I will make the non-denigration order and orders providing that the parties not discuss the proceedings with the children, and these will be mutual and on a without admission basis.
73I will make an injunction on a without admission basis that the father be restrained from allowing the paternal relative who is the subject of the mother's concerns to come into contact with the children, as this is the person who she said upset Child B some time ago.
74There are many concerning aspects in this matter including serious allegations and unexplained behaviour, particularly on the part of Child C. The Court awaits Mr A's report and a copy of these reasons and the orders made today should be provided to him.
75In relation to the time the children should spend with the parties during birthdays or school holidays, pending the publication of Mr A's report, the father should spend time with all the children together on Child D's [approaching birthday], and otherwise the existing arrangements will continue for the school holidays. The orders will enable Child A and Child B to spend further time with the father in accordance with their wishes.
THE PROPOSED ORDERS
76Subject to hearing from senior counsel and the ICL, I propose to make the following orders:
1The orders in the minute of orders sought dated 1 February 2022 be discharged.
2The children [CHILD A] born [in] 2008 and [CHILD B] born [in] 2010 spend time with the Applicant, [MR NASIF]:-
(a)each alternate Saturday from 9.00 am to 3.00 pm commencing on 19 March 2022;
(b)each intervening Thursday commencing on 24 March 2022 from after school, with the Applicant to collect the children from school, until 7.00 pm; and
(c)at such other times as agreed between the parties and in accordance with the children's wishes.
3The children [CHILD C] born [in] 2016 and [CHILD D] born [in] 2018 spend time with the Applicant each alternate Saturday from 10.00 am to 4.00 pm commencing on 26 March 2022 on the following terms:
(a)handovers be supervised by [Supervision Service A] and occur as arranged with [Supervision Service A]; and
(b)the children's time with the Applicant be supervised by the paternal aunt, [Ms Nasif].
4The children spend time with the Applicant on 29 March 2022 from after school until 6.00 pm, with handover being supervised by [Supervision Service A] and the time being supervised by the paternal aunt [Ms Nasif].
5Without admission as to need, the Respondent, [MS DUVAL] be restrained by injunction from attending on any medical practitioner, psychologist, psychiatrist, counsellor or other health professional with any or all of the children absent agreement from either the Applicant or the Independent Children’s Lawyer or further order of the Court, except in the case of emergency or routine ailment when the mother shall give the Applicant notice of her intention to do so as soon as practicable.
6Each party shall provide the other with reasonable notice of any specialist, emergency or medical appointments made for any or all of the children and to provide all authorities and consents necessary to medical and health care professionals to enable each party to discuss any matters relating to any or all of the children and to attend such appointments.
7The parties be at liberty to serve a copy of these orders upon medical professionals and allied health carers consulted by the children and/or children's school and the service of the orders is deemed to be each parties' irrevocable authority and direction to release the requested information.
8Without admission as to need, the Applicant be restrained by injunction from permitting the paternal relative [MR C] from coming into contact with any of the children.
9By consent and without admission as to need, the Applicant and the Respondent be and are hereby restrained by injunction from:
(a)discussing the Respondent's allegations of abuse of any kind in front of, or within hearing distance of the children, including to any medical and/or health professionals;
(b)discussing these proceedings or the subject and content thereof with, in front of, or within hearing distance of the children or disclosing to the children any of the Court documentation;
(c)denigrating the other party in the presence of the children; and
(d)allowing any third party to any of the above things.
10These are orders to which section 68Q of the Family Law Act 1975 (Cth) applies and to the extent that this order is inconsistent with the Family Violence Order made in the case between the parties [in] February 2021 in [a court of a different jurisdiction] being Complaint number [Redacted], the aforesaid parenting orders shall prevail and the Family Violence Order is invalid to the extent of the inconsistency.
11The Deputy Registrar, Magistrates Court, 150 Terrace Road Perth cause a sealed copy of this order to be forwarded to the Commissioner of Police, the Deputy Registrar, Magistrates Court at Perth and the Chief Executive Officer of the Department of Communities.
12All interim applications otherwise be dismissed.
13The proceedings be adjourned generally, with liberty to the parties to relist including upon the publication of the single expert witness report.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
RM
Associate
17 MARCH 2022