NISBET and NICHOLSON

[2019] FCWA 217

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: NISBET and NICHOLSON [2019] FCWA 217

CORAM: O'BRIEN J

HEARD: 2 OCTOBER 2019

DELIVERED : 9 OCTOBER 2019

FILE NO/S: PTW 746 of 2018

BETWEEN: MS NISBET

Applicant

AND

MR NICHOLSON

Respondent

Catchwords:

PARENTING - Where children in primary care of the wife since separation - Where children and wife lived in [Country A] since separation - Where after protracted Hague Convention proceedings the return of the children to Australia was ordered - Where in compliance with that order wife moved to [State A] rather than returning to Perth - Disputed allegations of family violence - Where husband seeks order compelling return of children to Perth on an interim basis - Where wife seeks transfer of proceedings - Turns on own facts.

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Ms Johnson
Respondent	:	Mr Jones

Solicitors:

Applicant	:	Kim Wilson & Co
Respondent	:	Joss Legal

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

Adamson & Adamson (2014) FLC 93-622

Banks & Banks (2015) FLC 93-637

Bondelmonte v Bondelmonte (2016) 259 CLR 662

D & SV (2003) FLC 93-137

Eaby & Speelman (2015) FLC 93-654

Oswald & Karrington (2016) FLC 93-726

Sampson & Hartnett (no.10) (2007) FLC 93-350

SS & AH [2010] FamCAFC 13

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

1The matters for determination are the application of [Mr Nicholson] (“the husband”) for interim orders requiring [Ms Nisbet] (“the wife”) to return the children of the marriage, [Child A] born [in] 2010 and [Child B] born [in] 2014, to live in Western Australia pending the finalisation of the substantive proceedings, the response of the wife to that application, and the wife’s application for the substantive proceedings to be transferred to the Federal Circuit Court of Australia in [State A].

Background

2The relevant background is of course familiar to the parties and may be briefly stated for the purposes of these reasons, bearing in mind the provisions of s 69ZL of the Family Law Act 1975 (Cth) (“the Act”).

3The husband was born in [1983]. He is self-employed, and lives in Perth. The wife was born [1986]. She is employed as [a] [retail manager], and presently lives with the children in State A.

4The parties were married in 2009. Until about August 2017, they lived with the children in Perth. At about that time, the husband and his business were investigated by [a government agency]. The husband had to cease business operations, and the family was under considerable pressure.

5It is common ground that in early-August 2017, with the agreement of the husband, the wife took the children to [Country A] with the intention of staying there temporarily. In broad terms, it was intended that the children would return to Perth in time for the commencement of the 2018 school year, as the parties anticipated that the government agency investigation would have concluded by that time.

6In early-September 2017, the husband travelled to Country A to be with the wife and the children. During that visit, the wife informed the husband that she did not wish to return to Australia. The husband returned to Perth alone in early-October 2017.

7The husband maintained his opposition to the wife remaining in Country A with the children, but took no steps in the short term to address the issue. In late-November 2017, the wife commenced proceedings in the relevant court in Country A, seeking parenting orders. The husband objected to her application, and in mid-December 2017 took steps to have proceedings commenced in Country A under the Hague Convention.

8The wife commenced property proceedings in this court on 29 January 2018. The husband filed a response on 7 May 2018, although that response did not in any sense particularise the relief which he sought.

9On 7 May 2018, the Family Court in Country A made orders in the Hague Convention proceedings requiring the return of the children to Australia. The wife appealed; her appeal was dismissed on 11 October 2018. She sought leave to appeal further; that application was dismissed on 11 April 2019.

10The parties then negotiated through their solicitors in relation to the terms and conditions of the wife’s return. It is common ground that initially those negotiations were based on the premise that the wife and children would return to Perth. The negotiations broke down and instead of returning to Perth the wife travelled from Country A to State A, where she and the children remain. The wife’s family joined her there.

11The husband filed an amended response on 24 April 2019. He particularised the orders for alteration of property interests which he sought. He sought final orders for the children to live with him and spend time with the wife, seeking leave to otherwise particularise the final parenting orders he sought “at a later date”. He sought interim orders for the children to live with the wife and spend gradually increasing time with him, supervised by a contact centre in Perth.

12At the time the husband filed his amended response, the wife had not yet left Country A. The relief he sought was based on his expectation that when she did so, she and the children would return to Perth.

13The wife filed a reply on 4 June 2019 seeking sole parental responsibility for the children, that they live with her, and that they spend time with the husband as agreed or as determined by the Court. In the documents filed with that reply, she deposed to having returned to Australia on 10 May 2019 and expressed her intention to remain in State A with the children.

Relief sought by the parties

14The husband, in his application in a case filed on 28 June 2019, sought orders requiring the wife to return the children to Perth within 28 days, and to remain in Perth until further order. He proposed that the children live with the wife on an interim basis, and that they spend regular and increasing time with him, initially on a professionally supervised basis. He sought an interim order for equal shared parental responsibility.

15In her response to that application filed on 9 August 2018, the wife sought the dismissal of the husband’s application, various orders for disclosure in the financial case, and costs. In her reply earlier filed, she had already sought interim orders for sole parental responsibility, for the children to live with her (by implication in State A), and for the husband to spend supervised time with them. In the same reply she sought the transfer of the proceedings to the Federal Circuit Court at State A.

16Notably, neither party addressed in those documents nor in their affidavits the issue of what interim orders they would submit should be made in the event that they were unsuccessful on the central issue as to whether the children should live in State A or Perth on an interim basis.

The law – the parenting case

17The Court must be guided by the objects of Part VII of the Act and the principles underlying them.

18Section 61DA requires the Court, when making a parenting order, to apply a presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent of the children, or another relevant adult, has engaged in abuse of the children or family violence. If the presumption applies, it may still be rebutted by evidence that satisfies the Court that it would not be in the best interests of the children for the parents to have equal shared parental responsibility. The Court may also determine that the application of the presumption is inappropriate in the context of an interim dispute.

19As neither party proposed that orders should be made for the children to spend either equal time or substantial and significant time (as that term is defined in the Act) with each parent on an interim basis, it is unnecessary to refer further to the mandatory consideration of those options triggered by an order for equal shared parental responsibility.

20In determining what is in a child’s best interests, the Court must consider the matters set out in s 60CC. While those matters are divided in the legislation into primary and additional considerations, the primary considerations do not necessarily outweigh any combination of the additional considerations. The issues that are joined between the parties will dictate which s 60CC factors are relevant.

21The requirement to consider each matter set out in s 60CC does not mean that each factor must be expressly discussed in a judgment, where the factor in question has no sufficient relevance to displace the determinative significance of factors specifically discussed.[1]

[1] Banks & Banks (2015) FLC 93-637.

22The circumspection with which findings on an interim hearing must be couched is well-established, and remains “no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence”.[2] That said, in interim proceedings the court is frequently required to “weigh the probabilities of [the] competing claims and the likely impact on [the] children in the event that a controversial assertion [was] acted upon or rejected”.[3] Evidence may not simply be “disregarded” merely because facts are in dispute, leaving the interim determination to be made “solely by reference to the agreed facts”.[4]

[2] SS & AH [2010] FamCAFC 13, [88].

[3] Ibid, [100].

[4] Eaby & Speelman (2015) FLC 93-654, [18].

23The father’s application asks the Court to exercise its coercive power to order a parent to live with a child in a particular place. The Full Court has made it clear that while the Court clearly has the relevant coercive power:

…the proper exercise of that power is “at the extreme end of the discretionary range” and there should exist “rare” or “extreme” factors that warrant the Court exercising its discretion to make a coercive order requiring a parent to relocate so as to continue the role of primary caregiver of children.[5] [Footnotes omitted].

[5] Oswald & Karrington (2016) FLC 93-726 [16].

24Before making an order requiring a parent to relocate the Court must examine the capacity of the parties to provide for the “practicalities of life” in the proposed new location.[6] The power to make such an order should only be exercised in circumstances where the making of the order is “no more than is necessary to secure the best interests of [the] child”.[7]

[6] Sampson & Hartnett (No 10) (2007) FLC 93-350, [75].

[7] Ibid, [58]; see also D & SV (2003) FLC 93-137; Adamson & Adamson [2014] FLC 93-622.

25The principles just cited are primarily applied in the context of final determinations. They have less application in the context of an interim dispute, particularly in circumstances where the party seeking the coercive order seeks in turn that he or she be the primary caregiver of the children in the longer term. Nevertheless, they are appropriately borne in mind and may have more significance in circumstances where the evidence permits the formation of a preliminary view as to the merits of the primary application for final orders.

26Ultimately, the making of a parenting order involves the exercise of judicial discretion. The primary considerations set out in the legislation are “matters to be borne in mind as consistent with the objects” of Part VII of the Act. The additional considerations set out in the legislation:

… require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgments in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of the child”.[8]

The statutory presumption of equal shared parental responsibility

[8] Bondelmonte v Bondelmonte (2016) 259 CLR 662, 77,094 [32].

27In short, I do not consider it appropriate in the circumstances of this case to apply the statutory presumption in the determination of the interim dispute.

28The evidence clearly establishes significant communication difficulties between the parties, and a very high level of mutual distrust. The competing allegations of family violence simply reinforce the conclusion reached.

The evidence

29It is common ground that the children have a meaningful relationship with the wife, who has been their primary carer since birth, and that it is in their best interests for that relationship to be maintained.

30The wife says little in her affidavit material about the children’s relationship with the husband. She makes no specific proposals as to the maintenance of the children’s relationship with him, merely seeking final orders for them to spend time with him either on agreed “terms and conditions” or as determined by the Court.

31The case assessment report prepared by the family consultant after interviewing the parties on 4 July 2019 is instructive. The consultant noted that the wife expressed concerns about the safety of the children while in the care of the husband, suggesting they would be exposed to emotional and psychological abuse. She reported that the children had negative experiences during supervised time in Country A, and asserted that Child A in particular was very scared of the husband. She asserted that the husband was not particularly involved in parenting during the relationship, describing him as “useless”. She further alleged that the husband denigrates her to the children.

32The husband alleged that the wife slanders and abuses him on Facebook posts, having created a dedicated Facebook page to which she made frequent posts referring to him as a narcissist. He was concerned that the wife was negatively influencing the children in their views of him, noting that when he spent supervised time with them in Country A they were less affectionate towards him than had previously been the case. Nevertheless, he described the wife as a good parent, other than his concern that she inappropriately discusses court and similar matters with the children, and is deliberately seeking to undermine his relationship with them.

33The family consultant expressed concern that the wife was not promoting the children’s relationship with the husband. She summarised her concerns in detail, including the following observation:

“Both parents hold negative views of each other. Allegations have been made by the mother of a history of family and domestic violence perpetrated by the father, of which he denies and counter alleges it was the mother who abused him. The parental relationship appears to be distrustful, conflictual and distant. The parental distrust appears to have escalated post separation given the allegations and counter allegations, and the ongoing court proceedings in various precincts. Any good will or cooperation between the parents has diminished. Unfortunately, it is likely the children are becoming increasingly aware of their parents deteriorating, if not eroded relationship.”

34The wife’s failure to advance any specific proposals for the children to spend time with the husband on either an interim or final basis, other than to insist on supervision, does her no credit. In circumstances where she has been represented by experienced lawyers throughout the proceedings, it is reasonable to infer that her failure to advance specific proposals, and her insistence (based on experience with a private supervisory agency in Country A) that she would no longer agree to any form of supervision in Australia other than by a government agency, lend some credence to the husband’s expressed concerns at her unwillingness to support the children’s relationship with him.

35The husband’s expressed concerns in relation to the sequence of events immediately prior to the wife moving from Country A, not to Perth but to State A, similarly cannot be disregarded.

36The correspondence between the parties’ solicitors in the lead up to the wife’s departure from Country A proceeded on the basis that the wife and children would be returning to Perth. The wife says that she changed her mind, pointing to an alleged telephone call from the husband in which he made a threat as to what would happen to her if she returned to Perth. The husband vehemently denies that any such call was made, and asserts that the wife behaved in an entirely deceptive fashion, extending to seeking and receiving from him the amount required for the children to fly to Perth before purchasing the cheaper fares to State A. It is fair to say that the husband regards the entire course of conduct by the wife from the time she first expressed her unwillingness to return to Australia as being deceptive, calculated, and designed to exclude him from the children’s lives. He asserts that her various allegations of family violence are simply false, and are made by her for strategic purposes.

37The wife denies that characterisation of her conduct. She maintains that she is genuinely fearful of the husband. She maintains further that she is fearful for the safety of the family more broadly if they return to Perth, saying in effect that there are people in the relevant community in Perth who have been put to significant cost and inconvenience by the husband’s business activities and the subsequent investigation of them, and that she is fearful that they might act violently towards the parties and the children.

38It is not possible for me to assess the credibility of the parties in the context of an interim determination. While there are inconsistencies between some of the wife’s claims in her materials filed in this Court and the materials filed by her in Country A, those inconsistencies are not of themselves sufficient to enable me to conclude that one party’s version of events is more probable than the other.

39I note further that, in circumstances not yet fully explained, both parties have obtained family violence orders.

40The wife obtained a Family Violence Intervention Order in the relevant Magistrates Court in State A, which was expressed to be a final order; the husband’s recent application to have that order discharged was unsuccessful and it remains in force.

41The husband in turn applied in Perth for Family Violence Restraining Orders against the wife (at a time when she was living in State A) and against the wife’s father (at a time when he too was living in State A). The wife says that she has not yet been served with documents in relation to the husband’s application against her. The husband’s application against the wife’s father was apparently resolved by way of mutual undertakings.

42All of those matters will no doubt be explored in detail at trial. On an interim basis, however, the evidence does not support a conclusion that the children would be at risk of physical harm in spending time with the husband. There is a risk of the children being exposed to psychological harm if they spend unsupervised time with the husband in the short term; that is so regardless of which of the competing allegations of the parties are eventually shown to be accurate. If the wife’s claims about comments made by the husband to the children, and their fear of him, are accurate then supervision in the short term is indicated. By the same token, on the husband’s case a conclusion can clearly be drawn that the children would be at risk of emotional harm by being exposed to the wife’s likely reaction to any unsupervised time in the short term.

43I record that I have considered the relevance to the matters presently to be determined of each of the additional considerations set out in the legislation. As properly acknowledged by counsel during their submissions at the hearing, very few of those considerations are of significance in the resolution of the short-term dispute.

44The determination of the interim parenting dispute turns primarily on two issues. From the husband’s point of view, if the wife is not ordered to return to Perth with the children he asserts that his relationship with them will not be able to be maintained pending trial. From the wife’s point of view, the children are presently settled in State A in her care, in appropriate circumstances, and should not be further disrupted by a move to Perth on an interim basis particularly when they have not lived in Perth since 2017.

45There are notable omissions in the evidence of each party in relation to each issue.

46The husband told the family consultant as recently as 4 July 2019 that “for the interim and until a decision is handed down, he may be able to travel to [State A] every 2 or 4 weeks.” In his affidavit affirmed on 9 September 2019, albeit in the context of responding to the wife’s application for transfer of proceedings, the husband simply says that he has already incurred significant costs travelling to Country A to visit the children, and that he has “a newly established business in Perth and limited resources to continue to pay to travel and likely could not afford to travel interstate”. He does not descend into further detail in relation to his financial circumstances.

47The wife in turn asserts that she has no family or friends in Perth. Counsel for the husband pointed out that she had recently disclosed documents in which persons living in Perth and describing themselves as her friends had provided character references for her.

48As already noted, the husband put forward no submissions as to what orders should be made to enable him to spend time with the children in the event that they are not required to return to Perth pending trial, nor did he give any evidence as to his availability and financial capacity to do so, beyond the very limited evidence outlined above. Similarly, and even less helpfully, the wife put forward no specific proposals for the children to spend time with the husband on either scenario.

49Self-evidently, those omissions by each party whether intentional or otherwise are unhelpful in the present context.

50The current lack of any arrangements for the children to spend time with the husband is entirely unsatisfactory. The absence of specific proposals to facilitate him spending time with the children if they remain living in State A is also unsatisfactory. The husband’s concerns that the wife will at worst seek to actively undermine his relationship with the children, and at best take no positive steps towards supporting it, cannot be discounted and will no doubt be the focus of sharp attention at trial.

51That said, the husband’s proposed solution to that problem is flawed, and his failure to consider any alternative potentially calls into question the extent to which his proposals are genuinely focused on the best interests of the children, as distinct from his own views as to the wife’s actions, however justified those views might be.

52As counsel for the wife pointed out, regardless of the appropriate attribution of blame between the parties for the events of the last two years, the children are now reasonably settled in State A, living with the wife, and her parents and sister, in rental accommodation. The children are attending a local school, at which the wife has also secured full-time employment during school hours. If the wife was compelled to return to Perth with the children in the interim, she would arrive with no accommodation secured, and with no employment. The children would also change schools yet again.

53The sole benefit to the children of returning to Perth in the short term would be the opportunity to spend time with the husband frequently, albeit on a supervised basis initially. That said, the track record of the children’s time with the husband to date does not inspire a high degree of confidence as to just how successful such an arrangement would be, at least in the short term. On the husband’s own case, it is to be anticipated that the wife’s level of resentment at being required to move to Perth in the short term would be transmitted to the children, to the detriment of his relationship with them.

54While such behaviour, if it occurred, would reflect very poorly on the wife, and she should not in any sense be rewarded either for past poor conduct or by virtue of the anticipation of future poor conduct, nevertheless my concern must be directed to the impact of the husband’s proposed orders on the children.

55In short, I conclude that it would not be in the best interests of the children for the mother to be required to return to Perth to live with them on an interim basis.

56Neither party should misunderstand that conclusion. I express no view as to whether an order requiring the wife to return to live in Perth might properly be made after a trial at which all the evidence can be tested. As I have no doubt she will be advised, the wife must understand that her actions and those of the husband in the time between now and trial will be the subject of significant scrutiny, and that the question of whether or not the children’s relationship with the husband can properly be maintained if she remains living in State A will be squarely in issue.

Other matters – parenting orders

57That conclusion having been reached, the question remains as to what orders should be made for the husband to spend time and communicate with the children on an interim basis.

58The absence of detailed proposals by either party, let alone adequate evidence, means that I cannot be satisfied that I have sufficient information to make orders which will adequately address the children’s needs in the short term. I will require the parties to confer in relation to those matters, in the hope that some agreement on an interim basis might be reached, but will provide for the matter to be relisted before me, or another judicial officer in my absence, on an urgent basis if the need arises.

59To assist the parties in that regard I make the following observations.

60I note the information provided to me at the hearing on 2 October 2019 as to the waiting lists which apply at the only supervisory agency in State A approached to date. Without being critical of the agency in any way, those waiting lists are unacceptably long.

61As may be inferred from comments made above, I am entirely unconvinced by the wife’s assertion that only a “government” supervisory agency can be suitable, or will be trusted by her. The suggestion that she could draw that inference about unnamed agencies in State A based on a singular experience with an unrelated agency in Country A bears no further comment.

62I will require both parties to genuinely explore all options for the provision of supervision in State A, with a view to the children’s time with the husband resuming as quickly as possible.

63It is incumbent on the husband to put forward what he would regard as being manageable proposals to travel to State A to spend time with the children. In the absence of evidence I simply cannot speculate as to how often he can travel, or for what period.

64Assuming that the husband can only travel once every several weeks, the children should spend time with him as frequently as possible during each of his visits to State A.

65The children should have electronic communication, preferably by Skype or FaceTime, with the husband no less than twice each week pending the finalisation of the proceedings.

66The substantive proceedings should then be progressed to trial as quickly as that can be accommodated. I note in that regard that I was advised by counsel that, provided the husband gives relevant disclosure to substantiate what he asserts are two very significant debts to [two government bodies], the wife accepts that the property available for division between the parties is very modest and that accordingly the financial proceedings between them are not complex.

Transfer of proceedings

67The wife sought the transfer of the proceedings to the Federal Circuit Court in State A. She based that application on the proposition that the children would be living in State A between now and trial, conceding that the trial should take place in Perth if the husband had been successful in his interim application.

68The husband opposed the transfer of the proceedings, primarily on financial grounds.

69While counsel for the husband referred to s 33B of the Act, that section relates only to the transfer of proceedings to the Federal Circuit Court of Australia from the Family Court of Australia. The relevant matters for consideration are set out in rule 11.18 of the Family Law Rules 2004 (Cth) (“the Rules”), which is in the following terms:

11.18 Factors to be considered for transfer

(1)In making a decision under rule 11.17 or in deciding whether to remove a case from another court under subsection 46(3A) of the Act, the court may consider:

(a)the public interest;

(b)whether the case, if transferred or removed, is likely to be dealt with:

(i)at less cost to the parties;

(ii)at more convenience to the parties; or

(iii)earlier;

(c)the availability of a judicial officer specialising in the type of case to which the application relates;

(d)the availability of particular procedures appropriate to the case;

(e)the financial value of the claim;

(f)the complexity of the facts, legal issues, remedies and procedures involved;

(g)the adequacy of the available facilities, having regard to any disability of a party or witness, and any safety concerns; and

(h)the wishes of the parties.

70There was no evidence from either party as to who might be their witnesses at any eventual trial, or where those witnesses are located. There was accordingly nothing before me to enable any consideration of whether the proceedings might be dealt with at less cost to the parties if transferred; self-evidently, one party or the other will likely incur additional costs by virtue of travel regardless of the venue for trial.

71Clearly, this is a case of a type frequently dealt with both in this Court and in the Federal Circuit Court. That said, the rule specifically requires consideration of the availability of a judicial officer “specialising” in the type of case to which the application relates. While judicial officers in this Court and in its associated Magistrates Court “specialise” in hearing and determining family law cases, and not all judges in the Federal Circuit Court sit exclusively or predominantly in family law matters, it cannot be fairly said that any judicial officer of either this Court or the State A registry of the Federal Circuit Court “specialises” in the particular “type of case” presented here.

72More relevantly, there is no information before me as to the availability of the judges of the State A registry of the Federal Circuit Court to progress the matter towards a trial in a timeframe comparable to that which can be achieved in this Court. That observation implies no criticism of my judicial colleagues in State A; I am anecdotally aware of the very substantial workload they carry, the high volume of cases in their dockets, and the unavoidable delays which might follow despite their best efforts.

73While the pressures on this Court are themselves significant, as I observed to counsel I can at least take clear and effective steps to progress the matter to trial as quickly as possible here. As no information was provided to me as to how long the matter might take to progress to trial in State A, that certainty of direction is in my view preferable to the alternative.

74Counsel for the wife submitted that in the event an Independent Children’s Lawyer was appointed, that appointment would most appropriately be of a lawyer based in State A, which in turn would support the proposition that the proceedings should be transferred. She made similar submissions in relation to the potential appointment of any single expert witness.

75Neither party has sought the appointment of an Independent Children’s Lawyer. Both parties are represented by experienced lawyers. I do not propose to appoint an Independent Children’s Lawyer of my own motion in those circumstances. That does not, of course, preclude either party from bringing an appropriate application in that regard.

76Similarly, neither party has sought the appointment of any single expert witness. It may well be that the appointment of an appropriate expert, or at the very least the preparation of a family report, would be desirable to enhance the quality of evidence available to the Court in determining the appropriate final orders. That said, there is no reason why an expert based in State A could not give evidence at a hearing in Perth by electronic means, nor is it necessarily the case that an expert based in Perth could not adequately conduct necessary interviews and observations for the purposes of a report.

77I am not persuaded that the proceedings should be transferred. That aspect of the wife’s application will be dismissed.

78Rather, I consider it preferable to advance the matter to trial as promptly as that can be accommodated by the Court. Subject to submissions by the parties, which I appreciate may need to await their conferral in relation to interim arrangements for the children to spend time and communicate with the husband, and any conferral they may undertake in relation to expert evidence, I have in mind that a readiness hearing could be allocated in February 2020 and the matter included in the first call over after that hearing, provided it has been made ready.

79Finally, I record that as there is a final Violence Intervention Order between the parties in place, the requirements of s 102NA(2) are met, such that neither party may personally cross-examine the other at trial. As both parties are presently represented, no further steps are required at this stage in that regard.

80Against that background, I do not propose to prepare draft orders, although that would usually be my preferred course. Rather, and bearing in mind that both parties are represented by experienced practitioners, I will give the parties the opportunity to confer and endeavour to reach agreement as to the orders required to give effect to these reasons.

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

KM
Associate

9 OCTOBER 2019