NORRIS and DICKSON
[2017] FCWA 85
•6 JULY 2017
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: NORRIS and DICKSON [2017] FCWA 85
CORAM: DUNCANSON J
HEARD: 16, 17, 18, 19, 20 AND 23 JANUARY 2017
DELIVERED : 6 JULY 2017
FILE NO/S: PTW 5906 of 2014
BETWEEN: MR NORRIS
Applicant
AND
MS DICKSON
Respondent
Catchwords:
CHILDREN - Where the father has [a serious chronic illness] and the mother is severely physically disabled - Where the father lives in [Coastal Town B] and the mother lives in Perth - Where the child is five years of age and has commenced pre-primary school - Where it is not practicable to continue an equal shared care arrangement - Consideration of the parties' respective capacities to care for the child - Where it is in the best interests of the child that her parents have equal shared parental responsibility for her notwithstanding that the presumption does not apply - Where it is in the best interests of the child to live with the father during the school term and spend most of the school holidays with the mother
Legislation:
Family Law Act 1975 (Cth) s 60B, s 60CA, s 60CC, s 61DA, s 65DAA
Category: Reportable
Representation:
Counsel:
Applicant: Ms D Taylor
Respondent: Ms C Smith
Independent Children's Lawyer : Mr W Dawkins
Solicitors:
Applicant: O'Sullivan Davies
Respondent: Reader Lawyers & Mediators
Independent Children's Lawyer : Wayne Dawkins Lawyers
Case(s) referred to in judgment(s):
Bondelmonte v Bondelmonte (2016) 91 ALJR 402
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
1[W] is five years of age. Her father, [Mr Norris] and mother, [Ms Dickson] are unable to agree about her living arrangements.
2Currently W lives with her parents on an equal basis in a two weekly cycle. W lives with the father in [Coastal Town B] from Friday to Monday in week one and from Thursday to Monday in week two. She lives with the mother in Perth from Monday to Friday in week one and Monday to Thursday in week two.
3These arrangements must change as W commenced pre-primary school in February 2017. The equal shared arrangement will not be practicable on an ongoing basis given her attendance at school and the distance between the parties' homes.
4The parenting of W presents challenges for both parties by reason of their disabilities. The father suffers from [a serious chronic illness]. The mother is severely physically disabled.
THE ORDERS SOUGHT
The father
5The orders sought by the father are contained within a minute of proposed final orders received 20 September 2016. The father proposes the parties have equal shared parental responsibility for W. The father proposes that W live with the mother alternate weekends from Friday to Sunday, to be extended if a long weekend, and most of the school holidays. He proposes she otherwise lives with him. The father makes proposals for W to spend time with the parties on special occasions, handover communication, the exchange of information, and travel. The father seeks an order that the parties ensure W is transported in a roadworthy vehicle and that neither party question W about the other or denigrate the other to her, or in her presence. In the event that W lives with the father, she would attend [School G] in Coastal Town B.
The mother
6The orders sought by the mother are contained within her Papers for the Judge filed 12 January 2017. The mother proposes that she have sole parental responsibility for W. She proposes that W live with her and spend time with the father each alternate weekend from Friday to Sunday, extended if a long weekend. The mother proposes that W spend one-half of the school holidays at the end of Terms 1, 2 and 3, with the father and one half of the holidays at the end of Term 4, failing agreement, on a week-about basis.
7The mother proposes various orders associated with W's living arrangements including time on special occasions, handover and communication. The mother wants W to attend [School J]. She proposes orders regarding the provision of information, travel and injunctions. The mother requires the father to complete a family violence program and the Mums and Dads Forever program. The mother proposes injunctions without admission as to need restraining her from exposing W to the consumption of illicit drugs and from permitting W to stay in her care overnight without an able-bodied support person being present.
The ICL
8W's interests were represented by an Independent Children's Lawyer ("ICL"), Mr Dawkins. The ICL did not provide a minute of orders sought. At the conclusion of the evidence his position was in line with "scenario one" of the Single Expert Witness, Mr Cairns, namely that, if the mother lives in Perth and the father lives in Coastal Town B, W should live with the mother and spend time with the father every alternate weekend. The ICL said orders are required regarding W's overnight care by the mother. By this he meant there should be safeguards regarding the overnight support workers or lodgers in the mother's home. He said there should be an agency involved in the selection process in respect of those workers or lodgers, which process should be transparent so the father was aware of who was "around" his daughter.
9The ICL suggested that [Agency M], the agency which provides the administrative functions to the mother for the employment of support workers, might be involved in the selection process. The ICL also suggested that the lodgers or overnight support workers be female which he said "takes away a lot of the concern that is raised by the fact that there are strange men in her [the mother's] house when she's asleep and [W] is there basically by herself".
FAMILY BACKGROUND
10The father was born [in] 1974. He is 42 years of age. The mother was born [in] 1976. She is 41 years of age. The mother has a daughter [Ms Maguire], born [in] 1996. Ms Maguire is a [nurse] in [Country Town C]. Her father is [Mr Maguire].
11The parties commenced a de facto relationship in November 2009 and were married [in] 2010. W was born [in] 2012. The parties separated in April 2014 on the father's case, or June/July 2014 on the mother's case. They remained living under one roof after separation.
12The father left the home on 21 September 2014.
13The father lives in Coastal Town B with his mother, [Mrs Norris]. The mother lives in [Suburb D]. A housemate or boarder also occupies her home and she receives the assistance of support workers.
SHORT HISTORY
14In 2006 the mother suffered [an accident] leaving her severely physically disabled. Ms Maguire was 10 years old at the time and was subsequently cared for on a full-time basis by her father. After about two years, when the mother was able to live independently, Ms Maguire spent weekends with her.
15In 2007 the father was diagnosed with a serious chronic illness.
16When the parties commenced cohabitation in November 2009 they lived in a unit in [Suburb Y].
17In April 2012 after W's birth, the parties moved to a home in [Suburb N].
18The father said he became the primary caregiver for W as the mother was limited in the physical assistance she could provide to her. He deposed he was the able-bodied partner in the relationship and capable of looking after W without being told what to do, but to avoid conflict he acted upon the mother's directions. The father deposed he occasionally received assistance from the mother's carers or a carer from [Company M]
19The mother disputed the father was W's primary carer. In cross‑examination the father agreed that the parties engaged the mother's friend, [Ms Rowan] as a nanny to look after W for five hours five days a week. The father said Ms Rowan provided significant assistance to give him a break and eventually her shifts were cut down.
20Ms Rowan confirmed that for about 12 months she worked from Monday to Friday from 12.00 noon to 5.00 pm and then for the next six months, she worked Monday, Wednesday and Friday. When Ms Rowan was at the home the father was supposed to rest.
21The mother deposed that in the absence of Ms Rowan or a carer she directed the father how to care for W. After Ms Rowan left, the mother engaged a carer for six hours a day who provided care for both her and W. When the carer was not at the home, the father was responsible for the care of the mother and W.
22The mother deposed and I accept:
Without the assistance of the carers or nannies, both [Mr Norris] and I would not have been able to care for [W] together or separately on our own.
23The mother asserted the father had difficulty regulating his anger and often yelled and screamed at her. For the most part the father denied this.
24However in cross examination the father conceded he had difficulty controlling his temper at times when living with the mother. He denied calling her "a retard" and "a cripple" but said he had sworn at her. He denied hitting the mother intentionally while in bed and he denied using foul language to Ms Maguire.
25The father deposed the mother yelled at him and told him he was "disabled" and should "accept my limitations". He described the mother as controlling and aggressive if he didn't do things "her way". The father alleged the mother ran into him with her wheelchair on a number of occasions and he sustained injuries when he was not quick enough to get away from her.
26I consider the father was prone to angry outbursts during the parties' relationship and I accept much of the mother's evidence in this respect. The serious chronic illness Counselling notes refer to the father's feelings of anger and his attempts to address them in counselling. I also accept the father's evidence that the mother could be overbearing and demanding. There were arguments between the mother and him and also between the mother and Ms Maguire. I accept the father's evidence that the mother drove her wheelchair at him.
27The parties lived separated under one roof, on the father's case from 26 April 2014 and upon the mother's case from June or July 2014. Nothing turns on the difference.
28The mother said in September 2014 an incident took place in which the father yelled at her and W stood between the parties and told the father to "stop yelling at mummy". The father denied this occurred. He recalled an incident when W reacted to a fight between the mother and Ms Maguire.
29In September 2014 the mother invited a friend, [Mr Heeley] and his son to live at the parties' home as they were unable to find accommodation. The mother and Mr Heeley had lost contact when she had the accident but they had reconnected on Facebook. The father agreed to them moving in to the home for a short time. The father disliked Mr Heeley. The mother said on 21 September 2014, she asked the father to leave the home as he was becoming abusive. The father said they argued and she told him to leave. He was concerned about leaving W in the home with Mr Heeley and his son, when the mother had no one to assist her with W's care. He was concerned about Mr Heeley's extensive marijuana use. He was also concerned that once the mother had gone to bed for the night she was at the other end of the house from W and Mr Heeley and his son would have the run of the house. The mother said the father's view about Mr Heeley was irrelevant given his own criminal record.
30The father took W with him and went to Coastal Town B to live with his mother and brother.
31About two weeks later the father left W in the care of the maternal grandmother while he attended a medical appointment. The mother uplifted W from the maternal grandmother's care and took her back to live with her.
32On 13 October 2014 on an ex-parte basis the Court ordered that W be delivered to the father via the maternal grandmother that day and ordered that W live with the father and spend time with the mother on Monday, Wednesday and Friday from 10.00 am to 5.00 pm each week commencing 15 October 2014.
33On 12 November 2014 an incident took place at handover when the father shouted from the letterbox to the mother's carer using foul language. The father did not think the mother or W would have heard him.
34On 21 November 2014 orders were made by consent for the parties to share care of W with handovers to occur at the Caltex Service Station on [Road P], [Country Town Y]. Mr Heeley assisted with handovers at times and there were confrontations between him and the father.
35W had some difficulties with toilet training and the father took her to an incontinence expert for assistance. The mother also sought assistance with this. The parties did not communicate particularly well about this issue.
36On 10 May 2015 W was to spend time with the mother. It was Mother's Day. The parties arranged to meet at midday at a different handover location which was specified by the mother. The father was unable to find the handover location and the mother, who was in a vehicle driven by her friend [Mr Grey], was detained by reason of traffic and running late. The parties were unable to find each other although at times they were not far from each other. A number of text messages were exchanged. The father and the paternal grandmother had arranged to attend a winery for lunch. Eventually the father suggested they meet at a rest stop at [Country Town W]. The mother declined to do so. She sent a text message saying to meet at the winery so the father took W there. The mother's phone ran out of battery.
37The father and the paternal grandmother waited with W at the winery but by 3.30 pm the mother had not collected her. Mr Grey subsequently phoned the winery and asked the father to deliver W to the home of his parents in [Country Town E]. The father and the paternal grandmother arrived at the home in Country Town E in the early evening to hand over W.
38What then occurred reflected poorly on both parties and the paternal grandmother. The father said the mother was angry and drove her wheelchair down the side of his car and then reversed it into the passenger door. The father said the mother then ran her wheelchair into the front of his legs which caused him to be knocked to the ground. She subsequently drove her wheelchair at the paternal grandmother which struck her and both fell off the driveway onto gravel about a foot below. The father said the mother was smiling until neighbours came over and she began to make a wailing noise. She was put back into her chair and taken inside.
39The mother described the incident quite differently. The mother said she went outside, because the father would not hand W over to Mr Grey. She said the father charged at her and the paternal grandmother got out of the car while verbally abusing her. The father and the paternal grandmother denied this. The mother was of the view that the father and his mother were intoxicated, which both denied. The mother said she had consumed one or two glasses of red wine at lunch but was not intoxicated.
40The mother said the father yelled and screamed at her and raised his hand. She feared he was going to hit her. She said she moved her wheelchair forwards to push him away from her, when the paternal grandmother appeared from behind and punched her on the head. She tried to get away and her wheelchair went over the edge of a retaining wall as did she and the paternal grandmother. The mother said the paternal grandmother continued to hit her in the head and yelled at her "you're not even human" and "people like you don't deserve kids". She said the father also hit or kicked her neck and back.
41The mother said Mr Grey physically removed the paternal grandmother off her and stood over her protecting her while she lay on the ground.
42The accounts of the parties and of the paternal grandmother differ in many respects. When the parties were unable to meet at the specified location, the mother thought the father had deliberately set out to be in the wrong place at the right time. She described the father as conniving and manipulative and said it would give him and his mother great pleasure to ruin her day. I do not agree that the father sought to ruin her day.
43The paternal grandmother said much the same about the mother. She said she would not be surprised if the mother had some sort of agenda in relation to the day. While I think it is unlikely the mother deliberately spoiled the day, she was not above being difficult about the handover location. This is borne out by one of her text messages which reads, "I'm not beneath making a scene."
44Some aspects of the mother's evidence about the handover location were unsatisfactory. It was not necessary to change the handover location to one which the father could not find. The mother refused to meet at the rest stop near Country Town W although it was convenient to her as she was to be having lunch at Mr Grey's parents' home in Country Town E. Instead she told the father she would meet W at the winery which was an hour and 20 minutes' drive away. She did not then do so.
45I do not accept the mother's explanation that she rejected the suggestion of the rest stop because it was isolated and she was concerned about the father's aggressive behaviour. I am satisfied that the father attempted to effect the handover but was thwarted largely by the arrangements and the directions of the mother.
46It is likely both parties and the paternal grandmother were angry when the father arrived at Mr Grey's parent's home. The mother had been denied spending the day with W and the father's lunch plans had been disrupted.
47I accept the evidence of the father and paternal grandmother, that the mother rammed the car with her wheelchair. Ms Maguire said the mother did this from time to time to get people to back off. The mother did not explain satisfactorily why Mr Grey was not a witness. He could have corroborated her evidence, that he physically removed the paternal grandmother from her and protected her while she lay on the ground. He did not do so. Given the conflictual accounts of events of that day, I consider his evidence would have been important. I infer that his evidence would not have assisted the mother.
48In the absence of any independent evidence I cannot be certain precisely what occurred. It seems both parties exaggerated and explained the incident in a way which lays the blame squarely upon the other. However, on either party's account of events it was a disgraceful incident involving a physical altercation between three persons, one of whom is confined to a wheelchair. Even if the mother rammed the father's car with her wheelchair, the father and the paternal grandmother should not have retaliated as, apart from her wheelchair, the mother is completely defenceless. Of the three persons involved no one was blameless.
49Fortunately W did not witness the incident. Such an incident had not occurred before. It is unlikely to occur again as both parties wish to ensure handovers are trouble free in the future.
50After the incident the mother attended hospital for treatment. The mother deposed she suffered bruising to her face, shoulder and hip and required pain medication. The discharge summary refers to tenderness and a small bruise over the hip but no internal signs of facial injury. The discharge summary also refers to "Other Blunt Force" as the injury cause but the mother denied she had claimed to have been hit with a blunt object.
51The mother obtained an interim Violence Restraining Order ("VRO") protecting her against the father and the paternal grandmother, to which I refer below. Since the incident she has suffered anxiety.
52The paternal grandmother suffered cuts to her shins and bruising to her hip, and suffered ongoing pain. She sought a VRO protecting her from the mother which was dismissed as VROs had been issued by the mother against her and the father.
53Following the incident the parties did not communicate in person for some considerable time.
54On 31 May 2015, W suffered an injury while playing on a bouncy pillow while in the care of the father. He took her to hospital. She had a hair-line fracture in her leg. Her leg was placed in a cast. The father did not tell the mother of the incident, but posted about it on Facebook. He told the mother's carer about it at the next handover.
55On 29 September 2015 orders were made that handovers be supervised.
56In August 2016, W suffered an injury when she fell on an escalator in the care of the mother and required stitches. The maternal grandmother informed the father of this a few hours after the incident occurred.
57On 19 August 2016 W's stitches were removed and both parties were at the hospital. They spoke to each other in person for the first time since the Mother's Day incident.
58In April 2016 the mother moved to Suburb D and W commenced kindergarten at School J, attending on days she was in the mother's care. The mother sought to change W's living arrangements such that W could attend kindergarten five days each fortnight. The father did not agree to the mother's proposal and made a counter proposal also changing the living arrangements to which the mother did not agree.
59W continues to have some difficulties in relation to toilet training. Both parties are addressing this, as are the teachers at school.
60Between 23 and 25 August 2016 on the instructions of the father's solicitors a private investigator surveyed the mother and W and provided a report.
The father
61The father was not deliberately dishonest, but he was less than forthright. He made concessions when he had to, usually when presented with documents which indicated a contrary position. For example, he deposed in his Case Information Affidavit that he had some convictions for wilful damage in the 1990s. In fact he had several convictions as described, but also convictions much later than that. When taken through the police records he agreed they reflected his criminal record.
62The father was evasive when answering questions about a common assault charge in 2009. He denied assaulting the female victim and did not recall attending court. After further cross-examination he said it "rang a bell" and he may have attended court. In relation to the assault, he said his medical condition played some part. The father was asked if he discussed his anger issues at counselling and said he may have done so. When counselling records were put to him he agreed he had done so.
63He denied smoking marijuana daily with the mother, but when documents were put to him suggesting otherwise, he conceded that at times he did so.
64On at least two occasions when documents were put to him indicating a contrary position to his own the father said "I stand corrected".
65The father did not deny his anger issues, marijuana use, or criminal convictions. He did however minimise their severity. The father felt his memory had improved since he moved to Coastal Town B and began receiving the injections he has been having for five years. He said his evidence about the above matters was a poor example of that improvement.
66For reasons contained in his report Mr Cairns expressed concern about the father's concepts of "personal responsibility and insight". To an extent, I agree with those concerns. The father lacked reflection on the shortcomings in his evidence. It is not that he is uncaring, but he sees things on a simple or superficial level. The father did not embellish his evidence. He gave truthful evidence when asked if he would return to Perth in order that W should live with the mother. He stated he would lean towards living in Coastal Town B for health reasons.
67The father has had anger issues in the past and sought counselling to address this. Although as a young child, W was exposed to the father's anger when the parties were together, that is not now the case.
68I accept the father played a significant part in the care of W prior to the parties' separation because at times when carers were not in the home he was the only person to provide practical and physical care for her, albeit on the mother's direction.
69I have no doubt the father loves W and wants the best for her. He is confident School G is the right school for her.
Mrs Norris
70Mrs Norris is the paternal grandmother. She is 66 years of age and is a volunteer worker.
71The paternal grandmother moved from Victoria to Western Australia in 2014 to be closer to the father and W. She and the father live together in a home in Coastal Town B which she owns with her other son. I consider her evidence was mostly reliable.
72The paternal grandmother played down the amount of support which the father requires from her. She said the father's serious chronic illness does not keep him from doing anything and they help each other. She denied the suggestion that she minimised the effects of his serious chronic illness which she said did not restrict him apart from slowing him down. Her evidence was, however, contrary to the notes of [Dr M] in Exhibit 10. The paternal grandmother did not agree she did most of the home tasks. She agreed she prepared most meals, but said the father could care for W without her assistance. While Dr M's notes were based on information received from the paternal grandmother and the father, it must be remembered that they were at the time applying for a carers' payment and it is likely they exaggerated the father's need for assistance. I therefore treat those notes with some caution, something Professor Blacker did too.
73The paternal grandmother has some health difficulties with symptoms of depression and fibromyalgia, which appear to be managed.
74I consider much of the paternal grandmother's evidence regarding the attempts to meet the mother on Mother's Day was reliable. She said and I agree that it is not known why the mother did not take up the option for handover to take place at the rest stop near Country Town W. The paternal grandmother admitted she called the mother "a bitch" at the time of the Mother's Day incident, but did not say to her "that people like [her] don't deserve kids".
75At the start of the paternal grandmother's evidence it was put to her that outside the courtroom that morning she had walked past the mother to get to the toilet and called her a "mole". The paternal grandmother denied this. She said they looked at each other but no one spoke.
76The mother gave no evidence about this and I do not find that this incident occurred.
77I accept the paternal grandmother's evidence that she owns a unit in Suburb D.
Ms Rowan
78Ms Rowan is a friend of the mother. Ms Rowan gave truthful evidence and was impartial and balanced. I found her evidence to be entirely reliable. After the mother had the accident they lost touch, but reconnected by accident. Their children were friends. Ms Rowan spoke frankly about the mother's volatile relationship with Ms Maguire when Ms Maguire was a teenager. Ms Rowan looked after W as described above. She confirmed that for the first 18 months of W's life, while she was not looking after W the father did so. When she was there, the father was supposed to rest.
79Ms Rowan described W as "an amazing kid". She said that from her birth she was hardly any trouble. She said W has an "amazing awareness".
80Ms Rowan said W is very close to the mother, listens to her, and the mother is very clear as to what her instructions are. W has adapted to what she knows.
81Ms Rowan says it is not the case that the father has no awareness, but the mother has a greater awareness as to W's needs. She said the father is slower to respond to a situation, probably because of his serious chronic illness .
82Ms Rowan is a good person to be involved in the life of W and the mother. Although they remain friends, unfortunately it appears they do not see each other regularly. Ms Rowan said she has never visited the mother's Suburb D home (in which the mother has lived since April 2016) and she has not met her housemate.
Mr Beattie
83[Mr Beattie] is the father's half-brother. He gave evidence electronically from Melbourne. Mr Beattie was forthright and his evidence was reliable. He owns a home in [Coastal Town D] and with the paternal grandmother part-owns the home in Coastal Town B, in which she and the father live. He is supportive of the father and the paternal grandmother, including financially. He has offered to provide financial support to enable W to attend School G if she lives with the father. He was asked if he would provide financial support if she did not attend that school. He said that he would only do so in consultation with the father, as he would not go against his wishes.
84Mr Beattie is a good and supportive person to be involved in the lives of the father and the paternal grandmother. Mr Beattie hopes to move to Western Australia in about two years' time, although those plans are not certain.
85He keeps in regular contact with the father and paternal grandmother by phone and Facebook, but visits to Perth are infrequent.
The mother
86Notwithstanding her disability, the mother gave her evidence without confusion or uncertainty. Although her speech is impaired in that she spoke quietly and very slowly, she was able to get her point across. She is a determined and forceful person.
87Like the father, the mother has given up marijuana use. I consider it likely that both have done so for the purposes of this trial, sensibly taking on board the recommendation of Mr Cairns. I would hope, although I cannot be sure that both will continue to abstain from marijuana use, and both conceded an improvement in their health as a consequence. The mother denied it was a tactical decision to give up cannabis. She also denied her suppliers previously came to the house.
88The mother showed insight into the needs of W when she said she did not spend time with W on Christmas Day so there was no changeover, as she did not want W to spend all day in the car. She suggested to the father that they do handover on Boxing Day so that W could enjoy her day.
89The mother was asked about her impression of the father and she conceded there had been an improvement in his lifestyle. She said she believes W loves her father dearly and the father loves her, but she described him as an "average father" and said her view of him was tainted and she found it hard to see the positives.
90The mother was asked if she always had an able-bodied person present to help when W was in her care. She described that as a somewhat ablest premise as she was capable of looking after W, saying they have adapted. She said she found it offensive to be assumed to require 24 hour surveillance like a child.
91The mother is a determined and resourceful woman. From her evidence regarding her support workers I formed the view she does not suffer fools gladly. Mr Cairns was of the same view.
92Mr Cairns did not have concerns about the mother's insight which he said presents as coherent and accurate in her accounts. I agree the mother showed greater emotional maturity than the father. However I consider she lacked insight as to W's needs and safety in relation to the arrangements for overnight care and the admission of strangers into her home as housemates. She was confident in her own assessment of the suitability of these persons and her ability to act protectively of W. I have serious reservations in this respect.
93By letter dated 6 September 2016 from the father's lawyers to the mother's lawyers, the father sought information regarding the mother's employees. The mother did not think this information was relevant and said it was none of the father's business who is in her house.
94I refer below to the mother's arrangements for the care of both herself and W.
Ms Maguire
95Ms Maguire is a nurse stationed at Country Town C.
96She was an honest witness and her evidence was balanced and reliable.
97Ms Maguire now enjoys a good relationship with the mother, although they clashed when she was a teenager and she deposed to having verbal arguments often. Ms Maguire recalled the father intervening in rows between her and the mother, intending to de-escalate them. She said he took her mother's side as he cared about the mother and much of the time he was supportive of her. She disapproved of her mother's marijuana use but otherwise spoke highly of her mother's parenting of both W and herself.
98Ms Maguire also recalled an occasion when the father entered her bedroom and used foul language to her. I accept her evidence in this respect. She recalled both her mother and the father used swear words.
99Ms Maguire had heard about the incident on Mother's Day, but said she had no knowledge of any previous incident of physical violence. She recalled the father became frustrated at times, but she had never seen him be physically violent.
100Ms Maguire said the mother does use her wheelchair to get people out of her personal space. She has driven her wheelchair at people to get them to back off. She could not recall it being done to the father, but it would not surprise her if it had been.
101Ms Maguire said she had seen a number of support workers, all female, some better than others. Sometimes support workers stayed the night and she knew of no nights when there was not a third person in the house. Ms Maguire herself had not spent the night with the mother and W since July 2015. Since separation the mother had only once asked her to stay over to be with W.
Mr Graeme
102[Mr Graeme] was not required for cross-examination and I did not therefore have an opportunity to make an assessment of him.
103Mr Graeme is the mother's current housemate. He is 64 years of age and commenced living with her in November 2016. Mr Graeme pays the mother $80 per week to rent a room in her home and he is there to assist her by being home each night. This is to ensure the house is secure and to be available in the case of emergency.
104Mr Graeme works as a [butcher]. He was previously [employed in various occupations] and was a [government officer]. Mr Graeme ensures he is home before the support workers leave at 9.00 pm. It is rare for him to have to assist in the evening. He intends to continue living with the mother for the next three to four years.
105In cross-examination the mother said Mr Graeme has a fiancée who lives [overseas] and who he visits for about four days once a month. He travelled [overseas] for nine days in January 2017. It is not known what his future plans with respect to his fiancée are, if any, as this was not mentioned in his affidavit.
Ms Masunda
106[Ms Masunda] is a disability support worker employed by the mother. She was not required for cross-examination. She commenced her employment with the mother in April 2016. She is suitably qualified as a carer. She studies enrolled nursing, but continues to assist the mother while she studies. She is also a mother and has a three year old son. She provides personal care to the mother and assists the mother parenting W.
107Ms Masunda slept overnight at the mother's home in April and May in 2016 when W was in the mother's care, and that ceased when the mother's housemate moved in.
108Currently Ms Masunda supports the mother for three hour shifts each Thursday, Friday, Saturday and Sunday evening and is happy to stay overnight should that be required.
Ms Al Amin
109Ms Al Amin is a disability support worker. She was not required for cross‑examination. She is employed by the mother and commenced her employment in mid-October 2016. She is a [university graduate]. She has a Working with Children Check and a National Police Clearance Certificate and she has worked with children. She provides assistance to the mother and W, and carries out general household duties each Monday to Friday from 7.00 am to 10.00 am. Occasionally she has stayed later than her usual shift. She is now looking for full-time employment. She deposed to a close and loving relationship between W and the mother and had no concerns about the mother's care of W.
Mrs Dickson
110[Mrs Dickson] is the maternal grandmother. She is retired and lives in [Inland Suburb G]. She was not required for cross-examination. Mrs Dickson has a close relationship with W, who spends one night each week with her at her home, usually from Tuesday after school until Wednesday afternoon. She hopes to continue to see W weekly, even after W starts school. Mrs Dickson described her daughter as resourceful, independent and intelligent, and capable of ensuring that W's needs are met. She has met Mr Graeme.
111Mrs Dickson is available in case of emergency and to assist if the mother does not have someone to stay overnight, as are her sons [Mr D Dickson] and [Mr G Dickson].
112In cross-examination the mother said the maternal grandmother had never stayed overnight at her Suburb D home. She also said W's midweek overnight with the maternal grandmother would stop when W is at school.
Mr Webb
113[Mr Webb] is a private investigator. He was not required for cross‑examination, but I viewed a video of surveillance carried out by him on the mother while W was in her care. The surveillance occurred when the mother was living in Suburb N on 23 March 2015. The surveillance also took place on 23 to 25 August 2016 when the mother was living in her current home in Suburb D. It showed W on her mother's lap on the electric wheelchair.
Mr Darin Cairns
114Mr Darin Cairns, Clinical Psychologist was appointed Single Expert Witness by orders dated 12 October 2015. He provided a report dated 28 April 2016.
115As to recommendations regarding W's living and spend time arrangements, Mr Cairns reported there were two scenarios possible by reason of geography and distance. He reported as W will begin full-time schooling in 2018, this was considered a factor in where she would live as peer relations will be of great significance for her development given her unusual home norms.
116In scenario one, where the mother lives in Perth and the father remains in Coastal Town B, Mr Cairns recommended W live with the mother as her primary carer and see the father every second weekend. His rationale for this recommendation was that he was not confident about the father's ability to remain impartial and objective in terms of the mother's relationship with W, if he were in a position of authority. He reported the mother presented as more capable and organised, whereas the father appeared more reliant on the paternal grandmother for planning and reflection. His general impression, and that of others, was that the father was good as a "fun" dad, but not good at taking on responsibility and being accountable or even in temperament.
117Mr Cairns' view was that such an arrangement would play to both parents' strengths and address their deficits.
118In scenario two, if both parties lived in the same region, Mr Cairns recommended equal shared care. His reasoning for this was that the mother would benefit from a break due to her physical limitations, and it would give W access to a parent who was more physically engaged with her and able to go places with greater ease than her mother can.
119Mr Cairns reported, that while he had concerns about the father's ability to provide at all levels of parenting, he believed an equal shared arrangement would minimise his concerns. He strongly urged the father to take courses in anger management and parenting.
120Mr Cairns has a background working with the Disability Services Commission and several years of experience working with disabled persons. He was impressed by the mother's ability to care for W and the extent to which each was attuned to the other's needs.
121As to the mother's care arrangements, Mr Cairns reported:
[Ms Dickson’s] physical limitations are significant. However, after reading affidavits and conducting interviews it appears she has sound care arrangements. Furthermore, [Ms Mooney] was clear that [Ms Dickson] had overnight care whenever [W] was with her. I also note my own observations that [W] was very receptive to and aware of her mother's directions as an apparent adaption to her physical limitations. At this point it appears that [Ms Dickson’s] physical limitations are being successfully addressed.
Assuming [Ms Dickson’s] care and funding arrangements are sustained, I have no concerns about her ability to care for [W] at all levels.
122Mr Cairns reported:
I am not confident [Mr Norris’] motivations for questioning [Ms Dickson’s] capacity to care for [W] were solely based on concerns for the child's safety. However, it is readily apparent he does identify safety as a concern.
123It is clear that overnight care has been an issue since before orders were made on 21 November 2014 and the father has been concerned about the arrangements made by the mother for overnight care. He reported his concerns to the Family Consultant on 14 November 2014.
124Mr Cairns said he was not aware of the arrangements made by the mother to have able-bodied persons lodge in her home. He expressed concern when told she advertised for housemates on Gumtree, something he was not aware of.
125It appears Mr Cairns was under the impression that the mother was in receipt of funding for support workers at night. It seems he had not appreciated the limitations on the mother's funding, causing her to try and save costs by having housemates who pay rent and are required as an able-bodied presence in the home in the case of emergency when W is with her. He said he would be concerned if the mother was under that pressure and made reactive plans for persons to come in the house. Mr Cairns said overnight stays are significant and there ought to have been layers of plans in place which the mother could call on as needed. He said he would insist that agreed systems were in place. He acknowledged that he had made the assumption that the mother had a funded arrangement. He said if this was not resolved, it would be a matter which would cause him to reconsider his recommendation.
126Mr Cairns considered a Working With Children Check to be essential as a minimum standard, something the mother did not think was necessary although she made it a requirement because the father insisted.
Professor David Blacker
127Professor Blacker is a neurologist and physician. He is the treating neurologist and physician of the mother and the treating neurologist of the father.
128On 31 October 2016 Professor Blacker prepared a report containing answers to questions posed to him by the father's solicitors. Professor Blacker reported that the father has a serious chronic illness. He described the father's physical symptoms, which are related to his gait and balance. Professor Blacker reported there are "only minimal mental symptoms perhaps involving some slight impairment of attention and memory". The father receives intravenous injections monthly and Professor Blacker reported he had remained quite stable from a clinical and MRI perspective and there may even have been some slight improvement in terms of balance and cognition in the last 12 months. Professor Blacker reported:
I am optimistic that [Mr Norris’] disability is likely to remain stable from [a serious chronic illness] perspective. It is not uncommon though for [serious chronic illness] patients to have superimposed other issues which make the [serious chronic illness] appear somewhat worse including arthritis and other conditions that people experience as they age. I would therefore be optimistic that his outlook is good for the next five to ten years, but perhaps over a 15 year time period there may be issues on a musculoskeletal or arthritic level that would interact with his neurological disability.
129In cross-examination Professor Blacker said when he last examined the father he was in good condition, better than several years ago. He said the injections are a potent medication which stops the progression of the disease and allows brain recovery.
130He confirmed there had been stability, if not improvement, for the father. Professor Blacker said he was "pleasantly surprised" by the terms of the clinical neuropsychology assessment report in respect of the father dated 3 June 2015, in particular with respect to page 3, under the heading "Formulation", where it stated:
[Mr Norris] is a 40 year-old man with an 8-year history of [a serious chronic illness]. On the current assessment, the majority of cognitive performances were intact, including some impressive performances relative to his same aged peers. In keeping with his [serious chronic illness] diagnosis, he displayed a weakness in speed of processing.
131The mother deposed that her understanding is that [the] serious chronic illness is a degenerative disease and so the father's symptoms are likely to get worse. Professor Blacker's evidence was contrary to the mother's understanding. He said the father had improved on better drugs and he was a compliant patient.
132Professor Blacker was shown Exhibit 10, which was Dr M's report in respect of the father written to assist the paternal grandmother to obtain a carers' allowance. Professor Blacker was asked if that more accurately represented the father's condition but he disagreed, pointing out that it was in fact a letter constructed to get a carers' allowance. He said he would place more credence on the detailed neuropsychology assessment report than a statement from a relative.
133In relation to the father's wish to remain in Coastal Town B to enhance his health by reason of the cooler climate, Professor Blacker said:
It is likely that less stress and more physical exercise are having more impact on the father's condition than the temperature.
134Professor Blacker provided a report dated 8 December 2016 in relation to the mother in answer to questions posed by her solicitors. He reported that the mother suffered [an] accident on 22 July 2006. He reported the likely cause was a vertebral artery dissection related to vigorous head and neck movements while dancing one week prior to the accident. The mother suffered significant damage to the base of the brain stem, resulting in paralysis of all limbs.
135Professor Blacker reported on the limited progress made by the mother since then, being some use of each of her limbs, although she remains wheelchair bound with sufficient hand function to operate her electric wheelchair. The accident has not impacted on the mother's cognition.
136The mother deposed that her health and physical limitations are not getting any worse, and if anything they will get slightly better over time as she continues with her rehabilitation. Professor Blacker did not support that view.
137Professor Blacker reported:
[Ms Dickson’s] condition and disability is likely to remain static over the next 5-15 years. I do NOT expect further improvements in her neurological condition. With the course of passing years, it may prove more difficult for her to compensate for neurological deficits as she suffers the usual degenerative processes of ageing, such as arthritis and reduction in cardiovascular fitness.
138Professor Blacker said over the next five to 15 years he expected to see spasticity of the mother's left hand and leg, such that it would be difficult to release grip. He said there would be muscular atrophy (shrivelling of muscles) and increasing weakness.
139Professor Blacker was referred to a letter dated 8 November 2016 from a senior physiotherapist at Fiona Stanley Hospital, and he confirmed the therapists had concluded that the therapy programs were now into a maintenance nature alone, rather than pushing for further improvement.
140Professor Blacker's evidence was of assistance to me and important as the parties' respective conditions are relevant to their capacities to care for W.
THE LAW
141These proceedings are determined under Part VII of the Family Law Act1975 (Cth) ("the Act"). In reaching my decision I will be guided by the objects of that Part and the principles underlying those objects.
142Section 60B sets out the objects as follows:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
143In deciding whether to make a particular parenting order, s 60CA directs me to regard the best interests of the child as the paramount consideration. Section 60CC sets out how I determine what is in a child's best interests. I must consider the matters set out in subsections (2) and (3), being the primary considerations and the additional considerations respectively.
144Section 60CC(2) sets out the primary considerations which are the benefit to the child of having a meaningful relationship with both the child's parents, and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
145Section 60CC(2A) provides that in applying the above considerations, the court is to give greater weight to the need to protect the child from harm.
146In Bondelmonte v Bondelmonte (2016) 91 ALJR 402 the High Court said at [32] (footnotes omitted):
A parenting order made under s 65D involves the exercise of a judicial discretion because it is made by reference to a paramount consideration of a general kind, the best interests of the child, which involves an overall assessment of a number of other considerations, either statutorily prescribed or considered by the court to be relevant. The primary considerations in s 60CC(2) are matters to be borne in mind as consistent with the objects of Pt VII. The additional considerations in s 60CC(3) 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.
Parental responsibility
147Pursuant to s 61DA of the Act, when making a parenting order in relation to a child, the court must apply a presumption that it is in the child's best interests for the parents to have equal shared parental responsibility for the child.
148Equal shared parental responsibility imposes an obligation upon them to consult as to major long-term issues regarding the child and to make a genuine effort to come to a joint decision about such an issue.
149The presumption does not apply in circumstances where there is abuse or family violence. The presumption may be rebutted by evidence which satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility.
150The father seeks an order that the parties have equal shared parental responsibility for W. The mother seeks an order that she have sole parental responsibility for her.
151The ICL proposes, on the basis that W lives with the mother, she have sole parental responsibility for her.
THE PRIMARY CONSIDERATIONS
the benefit to the child of having a meaningful relationship with both of the child's parents
152W has a meaningful relationship with both of her parents and this is to her benefit. Upon the proposals of both parties she will be able to continue to enjoy such a relationship with each of them.
the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence
153There is not a need to protect W from harm from being subjected to, or exposed to, abuse, neglect or family violence. I refer above to the incident of family violence which occurred between the parties in May 2015. W was not exposed to this. Currently handovers are supervised and the parties have little direct contact with each other. To the extent that there is a need to protect W from harm in the future, I refer to this in the context of the parties' capacity to provide for her needs.
THE ADDITIONAL CONSIDERATIONS
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
154W is too young to express any meaningful view. Mr Cairns reported it was readily apparent that W was more consistent in stating she wished to live with the mother when her mother brought her to interviews, but wanted equal care when brought in by the father. Mr Cairns suggested that by reason of W's age she was influenced by recent memories aligning her with the parent that brings her to the meeting. W also stated she wished to be with her nanna, (the paternal grandmother) as opposed to her father. In respect of these views, Mr Cairns said they are influenced by her experiences with the paternal grandmother. She enjoys school.
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)
155W has a close and loving relationship with both of her parents and her paternal grandmother. She has a close relationship with her maternal grandmother.
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
156Both parties have participated in making decisions about long-term issues in relation to W, they have spent time and communicated with her. W has lived in an equal shared cared arrangement since November 2014. The parties disagree as to her future education, with the mother wishing W to attend School J in Perth. The father wishes W to attend School G in Coastal Town B.
the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child
157Both parties are in receipt of disability pension, and they work part-time. Both have fulfilled their obligation to maintain W.
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
158W has lived in an equal shared care arrangement since November 2014. She is accustomed to living with the mother who is assisted by carers and has a housemate in her home. She is also accustomed to living with the father and the paternal grandmother.
159If W lives with the mother in Perth, she will continue her education at School J. She enjoys school and her classmates and is reportedly making good progress.
160If W lives with the father and the paternal grandmother in Coastal Town B it is likely that she will settle well with them. This will involve the start of a new school, but given her young age there is no reason to suggest that she would not easily adjust to the change.
161Whichever parent W lives with, she will be separated from the other parent for longer than she is currently used to. If she spends time every second weekend with the parent with whom she is not living, she will spend a continuous period of 12 nights with the other parent.
162As W is happy in the care of both parents, it is likely that she would adjust to this arrangement and would be settled in either parent's care. On the proposal of either party W will spend most of the school term with one parent. In relation to the school holidays the mother proposes these be shared equally, whereas the father proposes that if W lives with him in the school term she spend most of the school holidays with the mother.
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
163There is practical difficulty and expense. The father lives in Coastal Town B with the paternal grandmother. The home is owned by the paternal grandmother and Mr Beattie. The father says he is likely to remain in Coastal Town B if it is ordered that W should live in Perth. The father says the health benefits of living in Coastal Town B are significant and the cooler climate is more suited to his illness. Professor Blacker said it was more likely the changes the father has made to his lifestyle, such as giving up smoking and marijuana, attending yoga and commencing work, are factors which have had a positive effect upon his health, rather than the climate in Coastal Town B. The father and the paternal grandmother have employment in Coastal Town B. The father is [employed]. The paternal grandmother is a volunteer worker. Although the paternal grandmother owns an investment property in Perth, she and the father wish to remain in Coastal Town B where they are settled and have a comfortable home.
164The mother lives and works in Perth. Her family and support network is in Perth. She does not consider it feasible to move to Coastal Town B.
165Both parties desire to live where they are currently living and both have sound reasons for doing so.
166The practical difficulty arises from the distance between the parties' homes. That distance is a two and a half hour car drive each way. Handovers are supervised. The mother must hire a driver to transport her and W to and from the handover venue. The travel is manageable while there is an equal shared arrangement. That must now change. The distance between the parties' homes means it is likely that during the school term, W would travel between Perth and Coastal Town B at most, once a fortnight.
the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
167This is a significant consideration in the circumstances of this case. The parties' respective capacities to care for W require careful consideration and assessment as both have different strengths and weaknesses.
168The father has the capacity to provide for the needs of W assisted by the paternal grandmother. I am not convinced that the standard of care he could provide without her would be as good. The paternal grandmother is committed to providing this assistance. The father has suitable accommodation for W in her home. It is comfortable and familiar to W. He is able to devote most of his time and attention to her and the paternal grandmother says it is the father who provides for her basic needs. It is clear that the paternal grandmother assists, including when the father is at work.
169The father described the home as in a safe tight-knit community and he says he is active in the local community. W has made friends with children in the estate, local parks, as well as at swimming and day care. She often plays with children who live nearby. The mother acknowledges that currently at weekends W and the father do a lot of activities, events and outings together which W enjoys. The father provided well for W's needs when he sought assistance for her incontinence.
170Professor Blacker says the father's health is likely to remain stable from a [serious chronic illness] perspective.
171Mr Cairns is critical of the father's ability to provide for W's emotional needs, particularly because of his lack of insight and reflection. To an extent I can understand Mr Cairns' criticism in this respect as the father took a very simplistic view of some important issues, for example, his own criminal record. On the other hand, not all of Mr Cairns examples of the father's questionable insight were borne out by the evidence. Mr Cairns reported that the father referred to the mother having a number of carers, not getting on with anyone and bossing everyone around. Mr Cairns questioned this, although the evidence indicated that the mother has had a number of carers some of whom she was not able to work with and that she was a direct and demanding employer.
172Mr Cairns formed the impression that the father put little thought into what he said referring to the father's statements that the mother attacked people with her wheelchair and that she had a poor relationship with her elder daughter. Mr Cairns found no evidence of those matters. In contrast the evidence at trial indicated that the mother did use her wheelchair in that way and at times in the past had a difficult relationship with Ms Maguire.
173The father was prone to anger during the parties' relationship and since, including during the Mother's Day incident. There is no evidence to suggest W has been on the receiving end of his anger since the parties separated. Nevertheless, I consider the issue should be addressed and he should attend an appropriate course to gain some insight on the impact this might have on W, or others involved in her care including the mother and paternal grandmother.
174The mother described the father as the "fun" parent whom W loves very much. In that respect he provides well for her emotional needs.
175The father is able to provide for W's intellectual needs. His proposal is that she attend School G, which is a private [Christian] school. He wishes to give her the best education. He is supported in this by the paternal grandmother and Mr Beattie, who is prepared to provide financial support.
176The father is able to provide a stable and secure upbringing for W in Coastal Town B, in partnership with the paternal grandmother. The paternal grandmother is capable of providing for W's needs and provides valuable assistance to the father in his care of her.
177As to the capacity of the mother to provide for the needs of W, she is able to provide for her physical needs with the assistance of others. The mother uses an electric wheelchair for mobility. She has 80% movement in her right arm, limited movement in her left arm and some movement in her legs. She cannot stand without assistances and is not able to walk. W has had to learn to do much for herself, including toileting, and helping herself to food. W responds well to the mother's direction and does not question it. The mother has assistance from her support workers and her housemate is the able-bodied presence in the home at night.
178The mother is in employment with [Agency W]. She deposed "I work as a [care support adviser] and a speaker. I do a lot of education and training talks about engaging your own support workers, having authority over your own life and how to share management of your support services".
179Apart from her income from employment, the mother receives a disability support pension.
180The mother receives funding for support workers to help with the care of herself and W through the Disability Services Commission. She hires her own support workers, and an organisation called Agency M manages the formal employment and payment of the support workers. The mother is responsible for advertising, interviewing and selecting all support people who are involved in their care.
181Currently the mother receives three hours of personal and domestic assistance twice a day from her support workers. A support worker attends from about 7.00 am to 10.00 am and then again from 5.00 pm to 8.00 pm.
182The duties of the support workers are to provide personal care to the mother, dress or undress her, transfer her from her bed to the wheelchair in the morning or wheelchair to the bed in the evening. The support worker also carries out her parenting instructions, general housework and meal preparation.
183The mother employs male support workers as drivers or handymen and female support workers to attend to her personal care. Her support workers are employed to support her but she said it can be difficult to find someone who fits her personality and lifestyle.
184The mother does not employ a support worker at nights when she has W as she has a housemate staying with her.
185Support workers are distinct from housemates. The support workers provide care. The housemate is an able-bodied presence in the home when W is there, after the support worker has completed a shift and left. The support worker is paid as described above. The housemate is a boarder who pays to occupy a room in the house on condition that he is there at night. The housemates have both been male. The mother deposes there is always an able-bodied presence in the home at night when W is there.
186In contrast the father deposes that W was asked by the child health nurse who else was at home overnight and W told the nurse it was just her and her mother.
187The mother said sometimes there is a gap between the carer leaving at 8.00 pm or 8.30 pm and the housemate getting home at 9.30 pm or 9.45 pm.
188When the carer leaves, the mother is in bed. W is set up in the mother's room with a DVD and snacks if the housemate is not home.
189The mother and W have been at home alone for a few hours on the occasions that her housemate was not there. The mother said she was awake, alert and supervising W, who would usually nod off.
190The mother deposes she has a large support network of people to call upon to ensure that an able-bodied person is available to care for W overnight when her paid support workers have completed their evening shift. These include her mother, Ms Maguire, her close friend [Ms Farmer] and Ms Rowan. None of these persons have stayed overnight with her at her present home, although support workers have done so.
191The mother was extensively cross-examined about the support workers who assist her either in the capacity as personal carer or driver/handyman.
192The mother has had a number of support workers. Many are employed through advertising on Gumtree which is cheaper than advertising in The West Australian newspaper. Many of the support workers have stayed only a short time, perhaps a number of weeks or months. Their reasons for leaving have been varied. Some have left for personal reasons, others have left to move on to full-time employment. A number have left because of disagreements with the mother. Ms Rowan referred to the difficulties experienced by the mother in employing compliant and reliable carers and said carers can just not turn up.
193The father estimated the mother would have had around 100 to 200 different carers during the marriage. Ms Maguire also referred to a number of support workers, some better than others.
194The mother said she had about 20 support workers since W's birth, some had stayed a number of years, others had stayed a week. She said "carers come and go". The mother said "It is my home, I do not tolerate insubordination from my employees". By way of example, she said:
Recently I had a carer who wanted to yell at me and do things her way. Not how it works. In my home I have natural authority. Won't tolerate being spoken down to by anyone.
195In relation to a carer employed in July 2015, the mother said:
When people work a while they become complacent, think they know best, she wanted to do things her way, I wanted her to do things my way.
196The mother does not accept complacency and insubordination from her employees. She also said, "some people get used to my easy going nature and take advantage".
197The mother explained that the relationship between her and her support workers is a complicated one, the support workers provide personal care, involving intimacy, but at the same time must take instructions.
198The mother acknowledged that there are risks that a predator could look at her advertisement. She said, "I have a filtering system for support workers before people get to the interview stage". The filter system includes:
•text replies only and good English skills;
•females only;
•Working Visa, Police Clearance and Working with Children check;
•at interview their response to her dog – and if her dog does not like them "that's a no".
199The mother said she is still on a learning curve as to how to navigate this relationship and choose the right people and how to interview people. She said it is difficult.
200Some of the mother's support workers, but not all, have Police Clearance Certificates and Working with Children Checks. She has employed carers who she felt were trustworthy even though they did not have a Working with Children Check.
201The mother said when employing persons she makes it clear she is a hard task master and she jokes, saying "just do what I ask and no one gets hurt". She said W understands the support workers’ place in the house, that she is the mother and the matriarch. If W wants something she asks the mother and the mother instructs the support worker. She described this as a "solid hierarchy".
202When W was younger the support workers provided her personal care but the mother said she is an independent four year old and they now work together if she has a toileting accident. The mother said W has adapted and adjusted to the way it is.
203In describing W's incontinence the mother explained if she soils herself, she tells her to change and go to the bathroom. W pulls down her own pull-ups, hops on the toilet, and the mother throws the pull-ups in the bin. She wipes W as W cannot quite manage that.
204On one occasion the mother recalled W woke in the night with a bleeding nose. Under the mother's instruction W was able to stop the bleeding and change her pyjamas. Had she not been able to do so the mother said she would have been able to call her housemate to assist.
205I asked the mother how she was able to get her housemate's attention when W had earache. The mother said that W, who was sleeping with her, was screaming and got the attention of the whole house. Mr Graeme came to her room to see if everything was alright and W was given some Nurofen and settled. Similarly if W wet her bed, the housemate or support worker could assist to change her bedding and clothes.
206In contrast to the mother's evidence the father's evidence was that W wakes him on average once a week in the middle of the night and she regularly has nosebleeds in the warmer months.
207The mother says W's pull-ups are sufficient to keep her bedding dry whereas the father says W sometimes wakes him because she has flooded her nappy and sheets which need to be changed.
208If the mother is let down by a support worker she contacts a back-up. She said she has not been let down completely in the morning for a long time. If a support worker is late, the mother must remain in bed as she cannot get out of bed unassisted.
209If a support worker is late, W is able to make her own cereal. The mother said if she is in bed at any time of day, W knows she is "welcome to the pantry, fridge or fruit bowl".
210The mother was extensively cross-examined about her housemates both in the past and currently.
211The mother said that in 2008 while she was in hospital her housemates stole from her and were smoking her "weed". She found that disrespectful.
212From May to November 2016 [Mr Singh] boarded at her home. Mr Singh is Indian and was being educated here. He has since returned to his wife and children in India. He responded to the mother's advertisement on Gumtree and he rented a room from her. They had "an informal support agreement" that he would be in the house on the nights W was there. He was there to be an able-bodied person to assist in the unlikely event of emergency, for example a fire. The mother did not tell the father about Mr Singh as she said it was none of the father's business. Mr Singh was not involved in W's care.
213The mother said Mr Singh had a Police Clearance Certificate and applied for a Working with Children Check as a condition of moving in.
214Mr Singh had been in Australia for about six months prior to moving into her home. His Police Clearance and Working with Children Checks could only therefore have been valid for that period. The mother said she was always with W, who was never alone with Mr Singh. For the first couple of months that Mr Singh boarded in the mother's home W slept in the mother's bedroom while the mother "basically checked him out and made sure he was on the level".
215Having satisfied herself that Mr Singh was "okay", W then slept in her own room. The mother has educated W in protective behaviours and W knows she can speak with the mother at any time.
216Currently the mother's housemate and the able-bodied person to be in her home overnight is Mr Graeme. He rents a room in the mother's home and deposed he is there to assist the mother to ensure the house is secure, and to be available for her and W in the event of an emergency, or should they require his assistance. The mother was asked if W slept in the mother's room when Mr Graeme began living in the home. She said she did, but said "I do, however, have a bit more trust in [Mr Graeme]; he just comes across as a more trustworthy person in general". The mother did not explain what this says about Mr Singh and whether she thought he was less trustworthy.
217The mother explained she and W have developed strategies to address her limitations and W can follow simple instructions. W has been trained to sit on the footrest of her electric wheelchair. W wears a bike helmet in case she falls off. The mother drives her chair on the footpath and tries to avoid hazards and bumpy areas. When it was suggested to the mother that W might fall off, the mother said that she had been doing that for years, and the questioner was underestimating her ability. The mother deposed she takes a fall out of her chair on average once a year but is extra cautious and careful when W travels with her. The mother deposed as W gets older, she will be able to bike with the mother.
218The number of persons involved in the mother's and W's care presents a level of instability and unpredictability which is not desirable, but possibly something W has become accustomed to.
219The mother is fiercely independent and rejects any criticism of her ability to care for W.
220In relation to W's long term care, the father expresses a number of concerns. He deposes that as W gets older and becomes more self-sufficient she will be able to meet her own needs to a greater extent, but his concern is that the mother will start to rely on her for assistance. He recalls Ms Maguire assisting the mother with her personal care and is concerned W will take on a caring role. He is concerned "[W’s] needs will always compete with the mother's needs in her household". I consider there is some merit in the father's concern, particularly having regard to Professor Blacker's evidence that the mother's condition and disability will remain static. He did not expect further improvements in her neurological condition as the process of ageing would make it more difficult for her to compensate for her neurological defects. He spoke of increased weakness.
221On the other hand, Mr Cairns expressed no concern about this aspect of W's care currently and said:
For example, I noted that [W] was more attentive towards her mother and generally more aware of instruction and less demanding compared to her father. However, this was a function of [Ms Dickson’s] disability and the fact that [W] had developed this way to adapt to her mother's needs.
222I consider the mother provides well for W's emotional needs. I accept that they are attuned to each other's needs, although I am concerned at the extent to which W must attend to matters such as toileting or feeding on her own, or upon the mother's direction without assistance from others. It is possible this has contributed to her toileting difficulties. Nevertheless, this does not appear to have had an adverse effect upon her at this time and she responds well to the mother. In relation to W's educational needs, she currently attends School J and the mother's home is close to the school. The mother is opposed to any religious based school, such as School G.
223Recently W had a friend from kindergarten over for her first play date at the mother's home.
224I am not convinced that the mother will be able to make appropriate arrangements for W's care, five nights each week, being school nights, and 12 nights in each fortnight, which is her proposal. Until now the mother has not had to make arrangements for 12 consecutive nights. She did not state how she would do this, except to continue with her support workers, the existing housemates and to call on members of her support network if necessary.
225Mr Cairns expressed concern about the absence of layers of support for the mother. The mother discussed layers of support in terms of there being formal and informal support. The evidence did not persuade me that such layers of support are adequate.
226Although the mother's family and friends are able to provide support to the mother, upon the evidence, I am left questioning the extent to which they actually do so. The mother says she is capable of looking after W and is offended by an assumption that she requires 24 hour surveillance. I question therefore if she fully utilises her support network of family and friends and whether she considers it necessary to do so.
the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child's parents, and any other characteristics of the child that the court thinks are relevant
227W is just five years of age. Her parents have the disabilities described above.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
228Both parties have demonstrated an appropriate attitude to W and the responsibilities of parenthood. Both are concerned about the level of care she receives from the other, now and in the future.
229Mr Cairns reported W said both parents tell her to think well of the other parent but he is not confident this view and attitude is always upheld.
230In relation to the father, Mr Cairns refers to the negative view he and the paternal grandmother have of the mother.
231In that context Mr Cairns refers to the father removing W from the mother's care at separation but does not mention the father's concern about Mr Heeley and his son. Mr Cairns refers to the father's and paternal grandmother's actions and reactions on Mother's Day which he described as "obstructive and undermining of successful handover prior to the physical violence that ensued".
232That was not my finding upon the evidence.
233Mr Cairns reported the father thinks little of the mother but did not want her out of W’s life because it "seems wrong".
234The mother told Mr Cairns she had not considered the father not having a relationship with W and stated "I love [W] more than I hate him".
235Mr Cairns reported the father is currently supportive of W's relationship with the mother but he could not be certain it would continue.
236In relation to the mother it seemed to him readily apparent she would not undermine and will likely promote the relationship between W and the father.
237Mr Cairns reported at an emotional level he could not see any clear indications of W being negatively impacted upon and she responded neither parent speaks badly of the other.
238In my assessment both parties recognise that W will benefit from a relationship with the other and both will promote the relationship albeit on their own terms.
any family violence involving the child or a member of the child's family
239There has been family violence between the parties as described above. This has not involved W. It is unlikely to be an issue in the future.
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
240The mother applied for a VRO protecting herself from the father and the paternal grandmother. An interim order was granted. Those proceedings have not been finalised as the outcome of these proceedings is awaited.
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
241It would be preferable to conclude these proceedings with orders which provide certainty in W's living arrangements.
any other fact or circumstance that the court thinks is relevant
242Upon the proposals of both parties W will spend significant periods of time with the mother and the father. The father should attend counselling for anger management as recommended by Mr Cairns. He deposes he intends to do so although at trial had not done so. Although his anger has not been directed at W, as she becomes older this may become a problem and therefore it should be addressed at this time while she is still young.
243Having regard to the parties' attitude towards each other and co-parenting I consider it appropriate if practicable, that both should attend the Mums and Dads Forever program.
244While I am conscious of the mother's financial constraints I consider it is necessary for her to address what I perceive to be the deficiencies in her care arrangements for W when her support workers are not present particularly at night. I am not satisfied that those arrangements are sufficient or appropriate and I am concerned that they expose W to the risk of harm including from strangers in the mother's home. This was squarely raised by the father as an issue at trial but not adequately addressed by the mother in her evidence or on her behalf in closing submissions. I further consider that these arrangements made by the mother must be transparent. The father is entitled to know who else occupies the mother's home so that he can make his own assessment of the mother's arrangements to provide for W's care and safety. Similarly the mother should know that the father continues to live with the paternal grandmother and his care arrangements should also be transparent.
CONCLUSION
245Having considered the evidence in the context of the primary and additional considerations, I have come to the conclusions below.
Parental responsibility
246The presumption that it is in W's best interest that her parents have equal shared parental responsibility for her does not apply as there has been family violence.
247Nevertheless I consider it to be in the best interests of W for her parents to have equal shared parental responsibility for her. This requires the parties to consult and make a genuine effort to reach agreement about major long-term issues affecting W. The father proposes such an order and is presumably of the view that he would be able to consult with the mother in such a way as this order would require. The mother said if it were ordered that W live with the father she would take equal shared parental responsibility if "on offer", but thought communication would be difficult. Mr Cairns said W should receive the best from each of her parents and I am of the view that an order for equal shared parental responsibility goes some way to achieving this. I consider it would be to W's benefit to have input from both of her parents in the decision making process and that neither parent should be excluded therefrom. Most recently the parties were able to communicate directly when W received hospital treatment. The parties disagree about W's schooling, but that is a decision to be made by me and unlikely to be an issue in the medium-term. I shall set out in the orders the approach the parties should take to the decision making process in the absence of agreement.
The child's living arrangements
248As I intend to make an order that the parties have equal shared parental responsibility for W, it is necessary for me to consider the specific outcomes set out in s 65DAA of the Act.
249It would be in the best interests of W to spend equal time with each of her parents. Such an arrangement is not reasonably practicable by reason of the distance between the parties' homes and the lengthy travel involved. Although the parties have been able to implement such an arrangement to date, that cannot continue by reason of the need for W to attend school during the week.
250It would be in W's best interests to spend substantial and significant time with each of her parents. Substantial and significant time includes days that fall on weekends and holidays and days that do not, and is time which allows a parent to be involved in a child's daily routine, and occasions and events of particular significance to both parent and child. Such an arrangement is not reasonably practicable for the same reasons referred to above.
251The reality is it will be necessary for W to live with a parent during the school week and spend time with the other parent at weekends and during school holidays.
252It is necessary to weigh and balance my findings as to the primary and additional considerations, as set out above.
253Whatever her living arrangements, W will be able to maintain a meaningful relationship with both of her parents. She is not at risk of the harm referred to in the second of the primary considerations.
254W has a close and loving relationship with both of her parents. She is happy and settled in the care of each of them and is likely to adapt to changes in her living arrangements. What is pivotal in the circumstances of this case is the parties' respective capacities to provide for the needs of W. Both parties provide well for her intellectual needs. The mother provides better for her emotional needs and the father is able to provide better for her practical needs. In the longer term the mother's health at best will remain static and at worst may deteriorate with the ageing process. The father's health on the other hand is not likely to deteriorate in the medium term. It is likely therefore that he will remain better placed physically to provide for W’s practical needs.
255Both parties require the support of others. In the case of the father, he receives assistance from the paternal grandmother. She is a consistent presence in W's life and W is closely attached to her. The mother requires the assistance of support workers and also a housemate. There is a turnover of people in her household and therefore less stability and consistency in the care of the mother than in the care of the father. W's attendance at school is important and will become increasingly so in the future. It is desirable that she have certainty and predictability during the school week. The father is better able to provide for W’s needs and ensure that she is prepared for and taken to school each day.
256The mother is also able to do this but not without relying on the prompt attendance of carers at her home to assist both her and W.
257If a support worker is late the mother is unable to get out of bed. W's preparedness for school will depend on her following the mother's verbal directions to have her breakfast, get dressed and ensure she is ready for the school day at least until assistance arrives. I have some concerns about W’s transport by standing on the mother's electric wheelchair to get the short distance to school.
258Mr Cairns correctly referred to the importance of peer relationships for W. The father is physically more able to facilitate these relationships by way of social or extracurricular activities both now and in the future as they become more important.
259W is only five years of age. Her needs will become more complex as she attends full-time schooling and progresses through school. It is more likely these needs can be met consistently by the father.
260Importantly, at five years of age W is vulnerable. I am concerned that she is exposed to risk in the mother's care.
261It is necessary for the mother to have strangers into her home to care for her. The mother is demanding and there have been confrontations with carers. The mother's housemates are not adequately screened and I am not persuaded the mother's vetting procedure is adequate. The mother would not be able to protect W should any of these persons attempt to harm her in any way. Unfortunately it appears the family members who make up part of the mother's support network have rarely, if at all assisted her overnight. There have been times at night when there has been no one else in the house apart from the mother and W.
262I am mindful that whatever the outcome W will spend significant periods of time with the mother including overnight. It will be necessary for the mother to make proper arrangements for these periods. If W spends more of the school holidays with the mother, the mother may have a little more flexibility in making arrangements for her care. For example, W could spend nights at the maternal grandmother's home if overnight supervision were not available. That could not occur so easily during the school week.
263Leaving aside the issue of overnight care, if W were to spend the greater part of the school holidays with the mother the requirements for her care, such as getting ready for school, are less structured and more relaxed than they would be during the school term.
264The mother voiced her concern to Mr Cairns that she gets little "quality time" with W due to her having W for school days most of the time. If W spends a significant part of school holidays with the mother W would have that quality time with her without the demands of school and extracurricular activities.
265I am mindful that the father's ability to care for W is very much in conjunction with the paternal grandmother and I have taken that into account in determining W's living arrangements.
266I have concluded that it would be in the best interests of W to live with the father in Coastal Town B during the school term and with the mother at weekends and school holidays.
267Having regard to the distance between the parties' homes and the amount of travel involved I consider it would be in the best interests of W to spend every second weekend with the mother in Perth. Although she is accustomed to the travel, every weekend would be too much travel, being a five hour round trip, and would not give W an opportunity of participating in social or other activities in Coastal Town B where she will attend school. As proposed by the father, W should spend significant periods of time during the school holidays with the mother, subject always to the arrangements for her care and supervision being satisfactory.
268I am conscious that in coming to the conclusion I have regarding W's living arrangements, I have not followed either of the recommendations of Mr Cairns, the first of which was supported by the ICL.
269In relation to the mother's care arrangements there were matters not known to Mr Cairns when he prepared his report, in particular the mother's arrangements for housemates in her home.
270Regardless of the criticisms of either party about the other, on all of the proposed outcomes W will spend extended periods of time with both parties and both will be significantly involved in her upbringing. Indeed Mr Cairns' second recommendation was that W spends equal time with her parents, something I found to be in her best interests but not reasonably practicable.
Other matters
271In considering the matters referred to below, I have borne in mind that W's best interests are the paramount consideration.
272As I intend to order that W live with the father in Coastal Town B, she will attend the School G. Although the mother is opposed to her attendance at this school, I accept the father's evidence that he believes it is the best school for her. I have not compared the respective strengths of School G with School J. I do not consider it necessary to do so as the evidence suggests both are good schools.
273As to special occasions, the parties agree that W should spend time with the father on the Father's Day weekend and the mother on the Mother's Day weekend.
274The father's proposal includes a changeover at 1.00 pm on Christmas Day. Having regard to the distance between homes it is undesirable for W to spend a lengthy period of time travelling on Christmas Day. I therefore consider the mother's proposal which involves a changeover on Boxing Day is preferable.
275An arrangement whereby W spends time with both parents on an Easter weekend is likely to be one which she would enjoy.
276The father proposes that handover take place at the [Coastal Town M] police station and the mother proposes Coastal Town M train station. I consider, if possible the train station is preferable to the police station. In relation to handover I intend to make the orders sought by the mother as I understand the father is on reasonably good terms with the maternal grandmother and these orders are best for W. If however, the mother wishes to collect W from school at the start of her time with her, she should be at liberty to do so. In that way she has the opportunity of being involved in W's schooling.
277W should have frequent electronic communication with the parent with whom she is not living, I therefore intend to make the orders sought by the mother with respect to electronic communication.
278I shall make orders regarding communication and the provision and exchange of information, and travel, many of which are agreed.
279Both parties seek orders in relation to travel outside Western Australia. There was little evidence about this. I do not consider an injunction in this respect is necessary. The parties should be at liberty to remove W from Western Australia, although it is appropriate that detailed information be provided to the non-travelling parent. I consider not less than 21 days' notice of the proposed travel is sufficient, particularly as the orders provide that the travel may not coincide with the time W is to spend with the other parent.
280I shall also make a number of injunctions which I consider to be in W's best interests, including the parties' respective means of transporting her. It appears to be agreed that the father will not carry W. He should not drive a motor vehicle without a valid driver's licence and approval from his medical practitioner that he is fit to drive.
281I do not intend to order that the mother not transport W on her electric wheelchair. I have some concerns as to her safety in this means of travel, but it may be possible to use an appropriate harness or other safety device. There is no recent evidence that W has come to any harm from this and it may be necessary from time to time or in an emergency.
282Both parties should not expose W to illicit drug use and both have ceased using marijuana. There was little if any evidence to suggest that alcohol consumption was a problem which impacts on W.
283I consider the father should complete an appropriate program for anger management and a parenting program. The father, and if possible the mother, should both attend the Mums and Dads Forever program.
284My orders contemplate the father living with his mother in the foreseeable future. I intend to include that as a notation to the orders as if that were not the case that would be a significant change in circumstances which may need to be addressed.
285In relation to the mother it will be necessary for me to hear from counsel as to appropriate orders to be made to address my concerns with the mother's overnight care arrangements.
THE PROPOSED ORDERS
286Subject to hearing from counsel, the orders I propose to make are as follows:
Upon the Court noting that the father, [MR NORRIS] lives with the paternal grandmother, [MRS NORRIS]:
Discharge of previous orders
1All previous parenting orders be discharged.
Parental responsibility
2The father, and the mother, [MS DICKSON], have equal shared parental responsibility for the child, [W], born [in] 2012 ("the child").
3Unless contrary to the child's immediate welfare, the father and the mother shall, before making any major long-term decision about the child:
(a) consult with each other in writing setting out any major long-term decision making proposal and the reasons for that proposal;
(b) give proper consideration to the proposal and respond in writing in a timely manner, making a genuine effort to resolve any issues; and
(c) in the event any dispute is unable to be resolved, the parent making the proposal shall consult with a Family Dispute Resolution practitioner and invite the other parent to attend in an effort to resolve the dispute.
Living arrangements
4The child shall live with the mother as follows:
(a)every alternate weekend, from after school or 3.00 pm Friday to 5.00 pm Sunday;
(b)during the Term 1, 2 and 3 school holidays, from 12.00 pm on the day after the conclusion of the school term until 12.00 pm on the Friday before the commencement of school in the following term;
(c) in relation to long weekends or pupil free days that fall on a Monday or Friday and the child spends time with the mother as paragraph 4(a) above:
(i)if the public holiday or pupil free day falls on a Friday, the child spend time with the mother from after school or 3.00 pm Thursday to 5.00 pm Sunday; or
(ii)if the public holiday or pupil free day falls on a Monday, the child spend time with the mother from after school or 3.00 pm Friday to 5.00 pm Monday.
5The child shall otherwise live with the father.
6Notwithstanding any preceding orders, the child shall spend time with the parties as follows:
(a)During the Christmas/New Year summer holidays,
(i)the child spend time with the mother for a period of 28 nights; and
(ii)the child spend time with the father for the remainder of the school holidays;
at times to be agreed between the parties;
(b)In default of an agreement in accordance with order 6(a), the following orders shall apply:
(i)commencing from 12.00 pm on the day after the conclusion of the school term, for a period of 14 nights with the mother;
(ii)thereafter, for a period of 7 nights with the father;
(iii)thereafter, for a period of 14 nights with the mother; and
(iv)for the remaining duration of the summer holidays with the father;
(c) during the Christmas period:
(i)in 2017 and each odd numbered year thereafter, from 1.00 pm on Christmas Eve until 1.00 pm on Boxing Day with the mother and from 1.00 pm on Boxing Day until 1.00 pm on 28 December with the father; and
(ii)in 2018 and in each even numbered year thereafter from 1.00 pm Christmas Eve until 1.00 pm on Boxing Day with the father and from 1.00 pm on Boxing Day until 1.00 pm on 28 December with the mother;
(d)during the Easter period:
(i)in 2018 and each even numbered year thereafter, the child shall spend time with the mother from 1.00 pm Good Friday until 1.00 pm Easter Sunday, and with the father 1.00 pm Easter Sunday until 1.00 pm on the day following Easter Monday;
(ii)in 2019 and each odd numbered year thereafter, the child shall spend time with the father from 1.00 pm Good Friday until 1.00pm Easter Sunday, and with the mother from 1.00 pm Easter Sunday until 1.00 pm on the day following Easter Monday;
(e)on the Mother's Day weekend, if the mother is not already spending time with the child in accordance with order 4(a), the child spend time with the mother from 3.00 pm Friday to 5.00 pm Sunday;
(f)on the Father's Day weekend, the child spend time with the father from 3.00 pm Friday to 5.00 pm Sunday and all other orders be suspended to the extent that they are inconsistent;
(g)on the child's birthday, the mother's birthday, and the father's birthday, the child is to spend time with the parties as per orders 4 and 5.
Handover
7Unless otherwise agreed, handover of the child shall occur as follows:
(a)subject to the availability and consent of the maternal grandmother, [MRS DICKSON], handover shall occur between the maternal grandmother and the father at [Coastal Town M] train station or such other venue agreed between them; and
(b) in the event the maternal grandmother is not available or willing to facilitate handover, then handover occur at the [Coastal Town M] police station.
8The immediate family of the parties be permitted to facilitate handover on behalf of the parties.
Telephone communication
9The child shall have a telephone call or video call with the parent with whom she is not living each Tuesday, Thursday and Saturday, with such call to commence between 6.00 pm and 6.30 pm and the parent with whom the child is not living shall initiate the call.
10The parent with whom the child is living shall facilitate the child having communication in addition to that set out at order 9 above with the other parent, by telephone call, video call, text message, email, letter, card or any other means in accordance with the child's wishes.
Schooling
11The child attend [School G], or such other school as agreed between the parties in the [Coastal Town B] area.
12Each party be permitted to attend any school assemblies, extracurricular or sporting activities or any other school events involving the child.
Communication and exchange of information
13The parties shall communicate by text message or email about matters relating to the child. Such communication shall be polite and respectful and each party shall respond to the other in a reasonable time frame.
14In the case of an emergency or urgent matter affecting the child, the parties are at liberty to communicate by telephone call and/or text message.
15The parties keep the other advised of their mobile telephone number.
16The parties keep the other advised of the full and correct detail of their residential address and advise the other in writing not less than 28 days in advance of any proposed change of residential address.
17The mother shall cause the release of information and documents or provide information regarding the qualifications of the carers that the mother has employed, to the father on request, including but not limited to "Working with Children" Certificates and Police Clearances.
18The parties shall keep the other parent informed of the names and addresses of any treating medical or other allied health practitioners who treat the child and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the child.
19The parties inform the other parent as soon as reasonably practicable of any significant medical condition, significant health issue or significant illness suffered by the child and authorise any treating medical practitioner to release the child's medical information to the other parent.
20The father shall do all acts and sign all documents necessary to authorise the school attended by the child to provide the mother with information concerning the child's schooling, including but not limited to copies of any school reports, school photos, access to any portfolio of work, school circulars or notices concerning functions, parent/teacher nights, school carnival and other school functions or events to which parents are invited, as soon as practicable after they are issued.
21The parties be at liberty to provide a copy of those orders to [School G] or other school attended by the child.
Travel
22A party may remove the child from the State of Western Australia for the purposes of a holiday provided that:
(a)the proposed holiday shall not coincide with the time the child is to spend with the non-travelling parent, unless the non-travelling parent agrees in writing;
(b)the travelling parent shall provide to the other parent no less than 21 days' notice in writing of the proposed holiday, including in that notice the destination of travel and departure and return dates; and
(c)not less than 7 days prior to the departure date the travelling parent shall provide the other parent with a full itinerary of the holiday in writing; including accommodation details and address, contact telephone numbers for the duration of the holiday and return airline tickets.
Specific issues
23The parties shall ensure that the child is transported in a roadworthy vehicle and are compliant with the appropriate use of child restraints and seatbelts as provided under relevant road and safety laws.
24The parties be restrained and an injunction is hereby granted restraining each of them from:
(a) denigrating or insulting the other party, their friends, relatives or partner in the presence of or the hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other party in the presence of or the hearing of the child; and
(b) from consuming illicit drugs during the time the child spends with each of them or within 24 hours prior to the commencement of that time.
25The father be restrained and an injunction is hereby granted restraining him from:
(a)carrying the child; and
(b)driving a motor vehicle with the child without a valid Australian Driver's Licence and approval from his treating medical practitioner that he is fit to drive.
26The mother be restrained and an injunction is hereby granted restraining her from having the child in her care overnight without a suitably vetted carer or able-bodied support person being present.
Programs
27The father shall enrol in, attend and complete a Men's Domestic Violence Program and provide confirmation of his enrolment and completion to the mother.
28The father, and if practicable the mother, shall attend the Anglicare Mums and Dads Forever program and provide confirmation of their completion of the program to each other.
Procedural
29The proceedings otherwise be dismissed.
30All documents produced by named persons pursuant to subpoena be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from this order.
31In relation to material tendered as an exhibit into evidence in these proceedings:
(a) all parties must collect the exhibits tendered by them ("their exhibits"), from the chambers of Justice Duncanson, at least 28 days, and no later than 42 days, from today's date;
(b) all parties must contact the chambers of Justice Duncanson to arrange the collection of their exhibits;
(c) in default of compliance with subparagraph (a), all material tendered as an exhibit, save and except for material produced pursuant to subpoena, will be destroyed by the court without notice to the parties.
32In the event of an appeal being lodged prior to the expiration period of 42 days, orders 30 and 31 above do not apply.
I certify that the preceding [286] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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