O'CONNOR and HAMLIN
[2019] FCWA 241
•13 NOVEMBER 2019
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: O'CONNOR and HAMLIN [2019] FCWA 241
CORAM: SUTHERLAND CJ
HEARD: 4 & 5 NOVEMBER 2019
DELIVERED : 13 NOVEMBER 2019
FILE NO/S: PTW 2614 of 2016
BETWEEN: MR O'CONNOR
Applicant
AND
MS HAMLIN
Respondent
Catchwords:
CHILDREN - Arrangements for child to spend time with each parent during school holidays - International travel arrangements - Handover arrangements - Case turns on its own facts
Legislation:
Family Court Act 1997 (WA)
Representation:
Counsel:
| Applicant | : | Ms Hearty |
| Respondent | : | Self Represented Litigant |
Solicitors:
| Applicant | : | Hearty & Tam Family Lawyers |
| Respondent | : | Self Represented Litigant |
Case(s) referred to in decision(s):
Goode & Goode (2006) FLC 93-286
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
IT IS NOTED that publication of this judgment by this Court under the pseudonym O’Connor & Hamlin has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).
INTRODUCTION:
1[Ms Hamlin] ("the mother") and [Mr O’Connor] ("the father") were unable to reach final agreement about parenting issues concerning their five year old daughter, [S]. The proceedings were complicated by the mother’s negative attitude to the father and her unfounded beliefs that he may pose a risk of harming the child.
2To the parties’ credit, by the end of the trial they were able to reach substantial agreement in relation to parenting issues, including in relation to parental responsibility, live-with arrangements and the time the child should spend with the father during the school terms and other special occasions. Accordingly, I made final consent orders in relation to those matters.[1] In particular, the parties agreed the specific arrangements for the child to a spend block of time with each party during the period from 2:00pm on 19 December until 2:00pm on 2 January each year (“the Christmas festive period”), on an alternating basis and the handover arrangements that would apply during this period.
[1] Refer to the Minute of Consent Orders for Trial filed on 8 October 2019. In addition, during the trial, the parties were able to agree a number of other issues, including that they would have equal shared parental responsibility for the child and the father’s time with the child during the school terms.
3The key parenting issues that remained in dispute were as follows:
a)the time the child should spend with the father during the remainder of the school holidays each year;
b)when and for how long the child should be able to travel with her father to [Country A] for the first time to spend time with her extended paternal family; and
c)handover arrangements.
4In summary, the orders sought by the father in relation to the remaining school holidays, travel to Country A and handovers were as follows:[2]
[2] Refer to the father’s Amended Minute of Final Orders Sought at Trial as contained within his Papers for the Judge filed on 19 September 2019, as amended by the father during the trial. In particular, the father’s counsel confirmed that the orders sought in relation to time during the end of Term 4 school holidays each year should be read as being consistent with the consent orders agreed to by the parties at paragraph 3(a) of the Minute of Consent Orders for Trial filed on 8 October 2019.
a)The child spend time with the father during the end of Term 1, 2 and 3 school holidays as follows:
i)For the first week of the end of Term 1 and Term 2 school holidays in 2020, from the conclusion of school on the last day of the term until 5:30pm on the following Saturday;
ii)For 14 days during the end of the Term 3 school holidays in 2020, on the basis that the father have liberty to take the child to Country A (for the first time) for a holiday; and
iii)For half of each end of Term 1, Term 2 and Term 3 school holidays in 2021 and each year thereafter as agreed between the parties, and failing agreement, with the father for the second half of the school holidays in odd numbered years and for the first half of the school holidays in even numbered years;
b)The child spend block time with each party for the remainder of the summer school holidays each year, being from 2pm on 2 January until the commencement of the new school term (“the January school holidays”), on the basis that the pattern of block time set during the Christmas festive period each year flow through as follows:
i)In 2021: With the mother from 2 January 2021 for a period of 11 days; and thereafter with the father for a period of 11 days; and thereafter any remaining days be equally shared between the parties;
ii)In 2022 and each alternate year thereafter: With the father from 2 January each year for a period of 14 days; and thereafter with the mother for a period of 14 days; and thereafter any remaining days be equally shared between the parties; and
iii)In 2023 and each alternate year thereafter: With the mother from 2 January each year for a period of 14 days; and thereafter with the father for a period of 14 days; and thereafter any remaining days be equally shared between the parties;
c)In relation to handovers that do not fall within the Christmas festive period agreed arrangements, commencing 1 January 2020 the father collect the child at the commencement of his time from school or day care if a school day, and from the mother’s residence if a non-school day; and the mother collect the child at the conclusion of the father’s time from school or day care if a school day, and from the father’s residence if not a school day.
5The mother’s position in relation to the time the father should spend with the child during school holidays changed substantially in the lead up to the trial and during the trial. I will refer to these matters later in my reasons. However, in summary, the orders finally sought by the mother, as identified by her during her closing submissions, were as follows:[3]
[3] Refer to the mother’s Final Minute of Orders Sought filed on 3 October 2019, but as substantially amended by her during her closing submissions.
a)The child spend time with the father during each of the end of Term 1, 2 and 3 school holidays as follows:
i)In 2020 for a block of five nights;
ii)In 2021 for a block of six nights; and
iii)In 2022 and each year thereafter, for a block of seven nights;
b)The child spend time with the father during the January school holidays each year as follows:
i)In 2021 for a block of nine nights;
ii)In 2022 for a block of 10 nights; and
iii)In 2023 and in each year thereafter, for a block of 14 nights;
c)The father be permitted to travel with the child to Country A (for the first time) for period of up to 10 days in January 2022; and
d)In relation to handovers that did not fall within the Christmas festive period agreed arrangements, commencing 1 January 2020, the father be responsible for collecting and returning the child at the commencement and conclusion of his time with the child.
THE EVIDENCE:
6The mother was represented by solicitors from the commencement of the proceedings until August 2018, after which she was self‑represented, including at the trial. At the trial, the mother impressed as being well organised and prepared. The father was represented by solicitors until May 2017, at which point he represented himself for a period of time. The father re-engaged his solicitors in May 2019 and was represented at trial.
7The father relied upon his trial affidavit,[4] affidavit in response[5], updating affidavit[6] and case information affidavit[7]. He also relied upon the witness affidavits of his partner, [Ms D],[8] [Ms J][9] (a very recently retired [child-care worker] who has lived next door to the father for the past five years), and his friend [Mr P].[10] The mother relied on her trial affidavit,[11] updating affidavit[12] and case information affidavit.[13] The mother cross-examined the father and his witnesses. The mother was cross-examined by the father’s counsel.
[4] Filed on 19 October 2018.
[5] Filed on 22 March 2019.
[6] Filed on 4 October 2019.
[7] Filed on 6 May 2016.
[8] Filed on 19 October 2018.
[9] Filed on 19 October 2018.
[10] Filed on 17 January 2019.
[11] Filed on 3 December 2018.
[12] Filed on 3October 2019.
[13] Filed on 21 June 2016.
8I considered that the father and his witnesses were open, frank and balanced in giving their evidence and I had no hesitation in accepting their evidence. I also considered that the mother attempted to give her evidence honestly and as she saw it. This included the mother being prepared to make appropriate concessions against her interests, for example conceding that: (1) some of her communications with or about the father were abusive, derogatory and inappropriate; and (2) she needed to address her negative attitude towards the father, her anxiety around the child spending time with the father and the potential detrimental impact of her beliefs and behaviours on the child, including by seeking the assistance of a psychologist to help her to address these issues.
FACTUAL BACKGROUND:
9The father was born in 1979 and is now 39 years old. He is of Country A heritage. The mother was born in 1976 and is now 43 years old. She is of [Country B] heritage.
10The parties met in [early] 2013 and formed a relationship shortly thereafter. The parties broke off their relationship in [late] 2013, just prior to the mother learning she was pregnant with the child. The mother maintained in cross-examination that after learning she was pregnant she had “no relationship” with the father. However, she conceded that she sent various communications to the father and members of his family in Country A, as well as making Facebook posts about the father, that were abusive and derogatory.
11The child was born [in mid] 2014. The mother has been the child’s primary carer since her birth.
12Shortly following the child’s birth, the parties decided to give their relationship another go and the mother and child moved in to the father’s residence in [Suburb A]. Shortly thereafter, the father gave up his FIFO work and obtained work in Perth so that he could be more involved in the child’s care. The parties separated on a final basis in January 2015, after an argument between the parties whilst they were out having a meal with friends, including Mr P. The mother moved out of the father’s home with the child and then lived with her mother in [Suburb B], before later moving to [Suburb C].
13Following their separation, the father spent limited time with the child: initially on Thursday and Saturday afternoons and generally always supervised by either the mother or the maternal grandmother. In or about mid-2015, the mother then insisted that the father’s time with the child be supervised by a professional agency. From September 2015 until June 2016, the child then spent time with the father, supervised by [Supervision Agency A].
14In May 2016, the father then commenced these proceedings seeking parenting orders for the child. In particular, he sought interim and final orders for the parties to have equal shared parental responsibility for the child, the child to live with the mother and spend time with him on a regular basis, including overnights. The mother filed her responding documents on 21 June 2016. The mother also sought interim and final orders for the parties to have equal shared parental responsibility and for the child to live with her. She did not specify the final orders she sought in relation to the father’s time, but on an interim basis sought that he initially spend two hours per week, supervised by a professional supervision agency, gradually increasing over time to eight hours per week, unsupervised. The mother also sought interim and final orders permitting her to travel internationally with the child.
15At the first hearing on 28 June 2016, interim orders were made by consent, including for: the parties to have equal shared parental responsibility and for the child to live with the mother and spend time with the father: (1) for the first four weeks, for two hours each Saturday, supervised by the [Supervision Agency B]; (2) thereafter for the next eight weeks, for four hours each Saturday; and (3) thereafter, for eight hours each Saturday. The consent orders also provided for the father to undergo random urinalysis drug testing no more than once per fortnight.
16On 11 October 2016, the parties attended a case assessment conference with Family Consultant [Mr M]. During the conference, both parties confirmed that the father had complied with the mother’s drug urinalysis test requests and that all test results were negative. The parties were able to reach agreement in relation to interim parenting arrangements for the child. Accordingly, on the same day, the court made further interim consent orders, including providing for the father to have some very limited additional time with the child on weekends and for the parties to attend a further conference with the family consultant in February 2017.
17[At the end of] 2016, the father met Ms D and they subsequently commenced a relationship. The father introduced the child to Ms D in early February 2017.
18The parties attended a child dispute conference with Family Consultant Mr M on 20 February 2017. The father reported that his time with the child was progressing well. On the other hand, the mother was unsupportive of the father continuing to spend any time with the child on weekends and sought, instead, that he spend time with the child during a weekday. The mother also sought that she be able to travel overseas with the child for three weeks in June 2017. The father flagged that he also wished to be able to take the child to Country A for a holiday in 2017 for two weeks. The parties were unable to reach any agreement, including in relation to progressing the child’s time with the father to overnights.
19Family Consultant Mr M opined in his report and I accept that:
…overnight time needs to commence and build if attachments are to solidify for [the child] and her father. If there are periods of time [the child] is absent from her mother for the purpose of a holiday this adds to the need of consecutive consistent time the father may need to spend with [the child].
The Family Consultant cautions that the overnight time the father spends with [the child] needs to be at her pace and developmental stages. A significant factor for a child to spend time with the non-residential parent is the willingness of the residential parent to facilitate that time without conveying distress or anxiety they may hold which the child may unconsciously perceive.[14]
[14] Page 3 of the Conference Memorandum by Family Consultant Mr M dated 20 February 2017.
20At the directions hearing on 13 March 2017, the matter was listed to an interim hearing which ultimately took place on 21 July 2017. On that day, the parties were able to reach a further agreement in relation to the interim parenting arrangements for the child and consent orders were made, including a period of overseas travel for the mother and child from 27 June 2017 to 17 July 2017, and make-up time with the father upon her return. The consent orders also provided for the child to commence spending overnight time with the father for one night per fortnight (Friday to Saturday) commencing in September 2017, and increasing to two nights per fortnight in December 2017 (Friday to Sunday). The proceedings were otherwise programmed to a readiness hearing on 11 January 2018.
21Subsequently, the parties agreed to attend mediation and requested the court to vacate the readiness hearing – which it did. It appears that the parties participated in two conferences at their respective solicitors’ offices, the first in February 2018 and second in June 2018, but were unable to reach final agreement. On 27 June 2018, the father wrote to the court and asked for the proceedings to be re-listed to a readiness hearing, in light of the parties’ stalemate.
22The readiness hearing took place on 26 October 2018. At the time of the readiness hearing the father had filed his trial documents but the mother had not. The court extended the time for the mother to file her trial documents, which she subsequently did on 3 December 2018. The mother’s Minute of Final Orders Sought proposed, inter alia, that:
a)The parties have equal shared parental responsibility for the child.
b)From Term 1 2019 until the commencement of Term 4 2019, the child spend time with the father each alternate weekend from after school Fridays until 5pm Sundays; and in addition in each intervening week from after school Thursdays until after school on Fridays. (The mother’s Minute did not provide for what was to occur during Term 4 2019).
c)From the commencement of Term 1 2020 until the commencement of Term 4 2020, the child’s time with the father increase by one additional night each alternate weekend from after school on Fridays until after school on Mondays in each intervening week. (Again, the mother’s Minute did not provide for what was to occur during Term 4, 2020).
d)From the commencement of Term 1 2021 onwards, the child spend time with the father each alternate weekend from after school Thursdays until after school Mondays, and in each intervening week from after school on Thursdays until after school on Fridays.
e)The child spend four consecutive nights with the father during the end of Term 1 2019 school holidays, increasing to five consecutive nights during the end of Term 2 2019 school holidays and six consecutive nights during the end of Term 3 2019 school holidays. Thereafter in subsequent years, the child spend the first week of the end of Term 1, 2 and 3 school holidays with the father.
f)In relation to the Christmas school holidays each year, in 2019 the child spend time with her parents on a “week about” basis, increasing in subsequent years to:
i)In 2020, alternating blocks of nine nights;
ii)In 2021, alternating blocks of 12 nights; and
iii)In 2022, alternating blocks of 14 nights.
23It was common ground that in the months leading up to the trial in November 2019, the mother declined to consent to orders in the terms of her own Minute of Final Orders Sought filed on 3 December 2018 in relation to the extension of the child’s time with the father as set out in the previous paragraph. Up until November 2019, the child continued to spend time with the father in accordance with the interim consent orders made by the court on 21 July 2017.
24On 23 September 2019, her Honour Magistrate Andrews conducted a status hearing and made a number of orders, including for the mother to file a Minute detailing the final orders which could be made by consent. However, on 3 October 2019, the mother filed an amended Minute setting out the orders she sought, rather than the orders that were agreed. It was clear from the amended orders then sought by the mother that her position had become further polarised from that of the father. In particular, the mother sought, inter alia, the following final orders:
a)The mother have sole parental responsibility for the child;
b)The child spend four consecutive nights with the father during the end of Term 1 2020 school holidays, increasing to five consecutive nights during the end of Term 2 2020 school holidays and six consecutive nights during the end of Term 3 2020 school holidays. Thereafter in subsequent years, the child spend the first week of the end of Term 1, 2 and 3 school holidays with the father;
c)In relation to the end of Term 4 school holidays each year, the child spend time with her parents as follows:
i)In 2019, with the father from 5pm Thursday until 5pm Sunday each alternate week and the remainder of the time with the mother;
ii)In 2020, with each party for alternating blocks of seven days. (The mother’s Minute did not specify what was to happen in 2021 and 2022);
iii)In 2023, with each party for alternating blocks of seven days. (The mother’s Minute did not specify what was to happen in 2024 and 2025);
iv)In 2026, with each party for alternating blocks of nine days. (Again the mother’s Minute did not specify what was to happen in 2027 and 2028);
v)In 2029, with each party for alternating blocks of 12 days. (The mother’s Minute did not specify what was to happen in 2030 and 2031); and
vi)In 2032, with each party for alternating blocks of 14 days.
25The effect of the orders now sought by the mother was to substantially “put the brakes” on the father’s ability to spend increased blocks of time with the child during school holidays and in practical terms, put real limits on his ability to take the child on holidays to Country A to meet her extended paternal family. In particular, given the child was born on 27 June 2014 and will turn 18 in 2032, the mother’s proposal effectively was that the child should spend no more than 12 days at a time with the father until after she reached adulthood.
26The parties attended a further child dispute conference with Family Consultant Mr M [on] 4 October 2019. During the conference the mother reported to the family consultant that the child was anxious about spending time with her father. The mother disputed the family consultant’s suggestion that the child may be picking up on the mother’s anxiety about the child spending time with the father.
27In his report Family Consultant Mr M opined and I agree that:
a)The issues raised by the parties at the conference appeared to be largely the same as the issues that were raised during the 2017 conference;
b)The parties appeared to have made little progress for the child to spend overnight time with her father since 2017; and
c)The mother held considerable mistrust for the father and that the mother’s mistrust and anxiety concerning the father was an impediment to the parties being able to resolve parenting issues.[15]
[15] Page 2 of the Conference Memorandum by Family Consultant Mr M dated 4 October 2019.
28The trial commenced before me on 4 November 2019 and was completed the following day. As at the time of the trial, the mother lived with the child in Suburb C and the child attended at a government school in [Suburb D]. The mother had quit her employment as [a consultant] at [Business A] located in [Suburb E] the previous week and was currently unemployed.[16] The mother was uncertain whether the child would be able to continue at her same school in 2020, given that she no longer worked in the school’s catchment zone. The father lived with his partner, Ms D, in Suburb A. The father and Ms D were expecting the birth of their first child in [early] 2020. The father worked as a [tradesperson] in the Perth metropolitan area.
APPLICABLE LAW:
[16] The mother did not inform the court or the father of this fact until her cross-examination, and notwithstanding that she put questions to the father in his cross-examination to the effect that she was still so employed.
29These proceedings are determined under Part 5 of the Family Court Act1997 (WA) ("the Act"). In reaching my decision I will be guided by the objects of that Part and the principles underlining those objects. Section 66 sets out the objects and the principles underlying them. The Full Court in Goode & Goode made clear that when a parenting order is sought, whether it be final or interim, the starting point is the application of a presumption that it is in the best interests of the child that the child’s parents have equal shared parental responsibility, subject to the qualifications set out in the relevant section.[17] In this case the parties agreed during the trial and I am satisfied that they should have equal shared parental responsibility for the child.
[17] Goode & Goode (2006) FLC 93-286, [56].
30I am accordingly required to consider the obligations placed upon me by s 89AA of the Act which requires me to then consider whether the child should spend equal time or substantial and significant time with each parent. In this case, the parties agreed that the child should primarily live with the mother and spend substantial and significant time with the father. Thankfully by the end of the trial there were only a limited number of parenting issues that still remained in dispute. In determining the parenting issues that remain in dispute, I must, pursuant to s 66A of the Act, consider the best interests of the child as the paramount consideration. In determining what is in the child’s best interests I must consider the matters set out in s 66C of the Act. I now turn to a consideration of the relevant factors as required by the legislation. Where I do not refer to a factor, it is because I consider that it is not relevant to the limited issues remaining in dispute in this case.
PRIMARY CONSIDERATIONS:
The benefit to the child of having a meaningful relationship with both of the child’s parents.
31The Full Court in McCall & Clark approved of the decision of Brown J in Mazorski & Albright, wherein she concluded that, "a meaningful relationship…is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one".[18]
[18] McCall & Clark (2009) FLC 93-405, [115] and [121]; see also Mazorski & Albright (2007) 37 Fam LR 518, [26].
32Both parties maintained and I am satisfied that there is a positive benefit to the child in having and maintaining a meaningful relationship with each of the parties.
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
33The mother’s position at the commencement of the trial was that she believed the father had previously (and may still) pose a risk to the child, including as a result of: (1) his alleged illicit drug and alcohol misuse; (2) his alleged family violence to the mother; (3) his alleged family violence towards Ms D; and (4) his and/or Ms D’s alleged family violence to and/or inappropriate physical disciplining of the child. The mother conceded that there was no independent corroborative evidence supporting her allegations, including from the maternal grandmother (who did not file an affidavit for trial at all), the Western Australian Police, the mother’s and the child’s medical providers or the child’s school.
34It was arguable that by the end of the trial the mother had abandoned her position that the father posed a risk to the child, given that she consented to final orders that the parties have equal shared parental responsibility for the child and that the father should spend substantial and significant time with the child. Nevertheless I consider it appropriate to make findings in relation to the mother’s allegations in this decision. In short, I am satisfied that the child is not at risk of harm whilst in the care of the father for the following reasons:
Alleged family violence between the parties:
a)I am not satisfied on the available evidence that the father subjected the mother to family violence during their relationship. In particular, I do not accept the mother’s evidence that she was physically pushed by the father at the time of the parties’ final separation in January 2015. Rather, I accept Mr P’s evidence that the mother made accidental contact with the father when she walked backwards into him whilst packing and removing her belongings from the father’s home.
b)Aside from the mother’s general assertions, she was unable to point to any cogent evidence that could lead me to conclude that since the parties’ separation the father has subjected the mother to family violence. In addition, I accept the father’s evidence that he has not subjected the mother to family violence. On the other hand, I am satisfied that the mother has occasionally subjected the father to family violence. The mother conceded that she was abusive and derogatory in some of her communications with, and about, the father.
Alleged family violence between the father and Ms D:
c)The mother’s allegations in this regard were based upon alleged disclosures made by the child to the mother that on one or two occasions she had seen the father and Ms D shouting at each other. However, I am not satisfied that even if the child made such disclosures, that they were reliable in circumstances where the mother conceded that: (1) she questioned the child on a regular basis after spending time with her father; (2) she regularly made comments to the child that, in my view, were likely to undermine the child’s relationship with her father and Ms D;[19] and (3) the mother conceded that she needed to address with her psychologist her negative attitude to the father, her anxiety about the child spending time with the father and the potential detrimental impact her attitudes and behaviour were having on the child.
[19] For example: (1) that the child should call the police if her father attempted to physically discipline her; and (1) that the child must not shower with the father's partner.
d)I accept the evidence of the father and Ms D that they have a close and loving relationship. I also accept the evidence of the father’s neighbour, Ms J, that the father and Ms D appear to have a very happy relationship and that she has never observed or heard anything that would give her cause to be concerned about family violence being a feature of their relationship.
Alleged alcohol and illicit drug misuse:
e)I accept the father’s evidence that he and the mother both sometimes used marijuana during their relationship, but that he has not used illicit drugs for a considerable period of time. The father’s evidence in this regard was corroborated by the results of the drug tests he was required to undertake over the years, not only by the mother, but also in the course of his employment. Aside from the mother’s general assertions, she was unable to point to any cogent evidence that could lead me to conclude that since the parties’ separation, the father has misused illicit drugs or alcohol.
Alleged family violence and/or inappropriate physical disciplining of child by the father and/or Ms D:
f)Again, the mother’s allegations in this regard were based upon alleged disclosures made by the child to the mother that the father and/or Ms D had shouted at and/or smacked and/or kicked and/or deliberately stepped on the child at various times. However, I am not satisfied that even if the child made such disclosures, that they were reliable for the reasons set out above.
g)I accept the father’s and Ms D’s evidence that they do not shout at, smack, kick, assault or otherwise physically discipline the child. I also accept the evidence of Ms J that she has never observed or heard anything that would give her cause to be concerned that the father and/or Ms D were subjecting the child to family violence or using inappropriate and/or physical disciplinary strategies with the child.
35I am satisfied that the mother has exposed the child to her negative attitude towards the father and her anxiety about the child spending time with the father, including by regularly questioning the child after she spends time with the father and making comments to the child that were likely to undermine the child’s relationship with her father and Ms D. I am also satisfied that exposure to such attitudes and behaviour is, over time, likely to be psychologically harmful to the child. The mother appropriately conceded that she needed to address these issues with her psychologist.
ADDITIONAL CONSIDERATIONS:
The nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child).
36Both parties maintained and I am satisfied that the child has a very close and loving relationship with the mother. The mother maintained that the child’s relationship with the father ranged from “mediocre” to “good”. I am not persuaded this is the case. I accept the evidence of the father, Ms D and Ms J that the father and the child also have a very close and loving relationship.
37I am satisfied that the child has good relationships with other members of her extended family in Perth, including her maternal grandmother (whom the child primarily sees during school holidays and on special occasions) and Ms D. The mother acknowledged that the child was looking forward to the birth of her baby [sibling] in [early] 2020 and that it was important to the child that she be able to build and maintain a close and loving relationship with her sibling following [the] birth.
The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, or any other child or other person (including any grandparent or other relative of the child) with whom he or she has been living.
38Neither the mother nor the father propose orders that would result in the child being separated from her parents or any other significant person with whom she has been living.
39The mother raised concerns about the child’s ability to cope with spending increased time with the father, particularly during school holidays, and accordingly proposed that the father’s blocks of time with the child slowly increase over time. Whilst the father conceded that his blocks of holiday time with the child should gradually increase over time, he maintained that the timeframe proposed by the mother far too conservative, driven by her own anxiety and negative attitude towards him and was not in the child’s best interests.
40I am not satisfied that the slow timeframe sought by the mother is appropriate for the following reasons: Firstly, I am not persuaded that the mother has adopted a positive and child-focussed approach to the issue. Rather, I consider that the mother’s approach to the matter is largely driven by her own anxiety about the child spending extended time with the father (including sufficient time to enable the father to take the child to Country A for a holiday), rather than what the child could developmentally cope with. Secondly, I am satisfied that the child is developmentally able to cope with a more rapid timeframe than that proposed by the mother. In particular: (1) I accept the father’s evidence that once the child comes into his care, she is happy and settled and often requests to be able to stay longer; (2) I also accept Ms J’s evidence that the child presented as a confident little girl who always appeared to be happy, contented and comfortable in her father’s care. In response to the mother’s questions, Ms J confirmed that she had never heard or seen the child crying or distressed whilst in the care of the father and/or Ms D; and (3) I am satisfied that the father had given considerable thought to how he would respond to the child if she missed her mother and became unduly distressed. I am also satisfied that the father had a number of appropriate strategies that he would be able to implement to assist the child, in such circumstances, including ensuring that the child was able to Facetime or telephone her mother on a regular basis.
The practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty and expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
41The father lives in Suburb A, the mother lives in Suburb C and the child currently attends at school in Suburb D (in close proximity to the mother’s former place of employment). The parties agreed that the venue for handovers on school days would take place at the child’s school. This agreement meant that there would only be a limited number of occasions during the year when handovers would be required to take place at the parties’ respective homes. The father proposed that on such occasions the parties share the travel such that he collect the child from the mother’s residence at the commencement of his time, and the mother collect the child from his residence at the conclusion of his time. On the other hand, the mother maintained that the father should be solely responsible for all handovers for the following reasons: Firstly, the mother maintained that she was unable to participate in handovers as she suffered from a medical condition which precluded her from driving for more than approximately 30 minutes at a time. However, I am not persuaded on the available evidence that this is the case. The mother did not lead any evidence from her medical practitioner. In addition, the mother conceded that she has regularly been able to drive for longer than 30 minutes at a time when it suited her, for example, to travel to work and to attend church. Secondly, the mother also maintained that she only has one motor vehicle and that she is responsible for getting the child to and from school on most days[20] and her mother does not drive. However given that the mother would only be required to assist with handovers on a limited number of occasions each year, I am not satisfied that these factors preclude the mother from participating in handovers.
[20] Since the mother quit her employment in the week prior to trial and no longer works in the child's school's catchment zone, there is some uncertainty as to whether the child will be able to continue at her current school in 2020.
42I am satisfied that the mother should assist with handovers to the limited extent proposed by the father. In particular, I accept the father’s submission that there may be some psychological benefits to the child in seeing her mother actively facilitating her time with her father by assisting with handovers.
The capacity of each of the parents and any other person to provide for the needs of the child, including emotional and intellectual needs.
43I am satisfied that, save for the following matter, each party has the capacity to provide for the child’s needs, including her emotional and intellectual needs. The mother conceded and I am satisfied that she requires assistance from her psychologist to address the potential detrimental impacts that her current attitudes and behaviour may have on the child’s psychological wellbeing.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.
44The child is of Country A and Country B heritage. Both parties agreed and I am satisfied that the child will benefit from being exposed to, and learning more about, the heritage and culture of both her extended maternal and paternal families. This includes the child having opportunities to travel internationally to spend time with her extended maternal and paternal families.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the parents.
45I am satisfied that the father has demonstrated a very positive attitude to the child and to his responsibilities as a parent. On the other hand, whilst I am satisfied that the mother loves the child very dearly, in my view her negative attitude to the father and anxiety about him spending time with the child has sometimes resulted in the mother making decisions that were not child focused or in the child’s best interests.
Any other fact or circumstance the court thinks is relevant.
46There are two matters that I wish to address under this heading.
47 Firstly, both parties agreed that they should each have the opportunity to travel internationally with the child for the purposes of holidays. In effect, the mother sought to delay the father being able to take the child on a holiday to Country A for as long as possible because she feared that the father may retain the child in Country A and not return her to Australia. However, in my view, there was no cogent evidence from which I could be satisfied that either: (1) there was any reasonable basis for the mother’s fears; or (2) that there was any likelihood of the father unilaterally retaining the child in Country A and not returning her to Australia. For example, there was no evidence to suggest that the father had ever made threats to unilaterally remove the child from Australia or retain her in Country A. I accept the father’s evidence that he intends to continue to reside in Australia for the foreseeable future, as this is where the child resides with her mother. I am also satisfied that the father has formed strong links in Australia, including in relation to his employment and owning property.
48The father proposed that he be able to take the child to Country A for a holiday for the first time for 14 days in the October 2020 school holidays. Otherwise, it did not appear to be in dispute that overseas travel would otherwise take place during each party’s respective time with the child during school holiday periods. The father’s position in relation to travel in October 2020 was notwithstanding that on the father’s own timetable for the progression of his time with the child, he would only progress to spending a block of 11 days with the child in January 2021. The father conceded that he was prepared to limit the travel time in the October 2020 school holidays to a block of 10 days, rather than 14 days. I consider that such arrangement is appropriate and in the child’s best interests.
49 Secondly, during the trial, I asked the mother whether she would consent to an order to attend on her psychologist. Whilst the mother indicated that she intended to seek help from her psychologist, she expressed some concerns about the financial consequences of being subjected to an order requiring her to attend. It was not a matter that was pursued by the father. At the end of the day, I was not satisfied that it was appropriate to make an order requiring the mother to attend upon her psychologist, particularly in circumstances where the mother acknowledged that she did require psychological assistance and expressed an intention to make the necessary arrangements.
CONCLUSIONS AND ORDERS:
50Having regard to my findings as set out above I consider that it is in the child’s best interests and reasonably practicable to make orders in the terms sought by the father, save and except that the timeframe for the travel to Country A in October 2020 should be limited to 10 days. There was some inconsistency in the parties’ positions as to the time of day that handovers should take place during the end of Term 4 school holidays. In particular, the parties agreed that handovers during the Christmas festive period should take place at 2pm, but for the purposes of handovers in January 2020, agreed that handovers should take place at 5.30pm. Subject to the parties having liberty to make further submissions about the matter, I propose to make orders that in the event the parties cannot agree the handover time for other years, then it be at 2:00pm.
51For the convenience of the parties, I propose to consolidate all the parenting orders made in relation to the child into the one set of orders. Accordingly I propose to make the following orders:
RECITALS:
A.The parties acknowledge it is in the Child’s best interests to be able to spend time with both the maternal and paternal extended family in both Australia and the parties’ respective home countries.
B.The Father seeks to travel to Country A with the Child in the foreseeable future and the Mother is agreeable to same taking place at the appropriate time.
ORDERS:
1.All previous orders in relation to the child, [S], born [in mid] 2014 (“the Child”) be discharged.
2.The applicant, [MR O’CONNOR], (“the Father”) and the respondent, [MS HAMLIN], (“the Mother”) have equal shared parental responsibility for the Child.
3.The party with whom the Child is in the care of be responsible for day to day decisions concerning the care, welfare and development of the Child.
4.For the purposes of discussing issues regarding the Child’s care and welfare, the parties agree to liaise via ‘Our Family Wizard’ and in the event no agreement can be reached then the parties agree to attend at an agreed Family Dispute Resolution Service for the purposes of reaching agreement.
5.The Child live with the Mother.
6.The Child spend time with the Father during the school terms as follows:
a)for the remainder of the 2019 school year, for three continuous nights each fortnight from 3:00pm or the conclusion of school or day care on Thursdays until 5:30pm on Sundays, commencing 14 November 2019 and each alternate week thereafter;
b)commencing Term 1 2020, for four continuous nights each fortnight from the conclusion of school or day‑care on Thursdays until the conclusion of school or day care on Mondays, or 3:00pm if not a school day, commencing 13 February 2020 and each alternate week thereafter; and
c)commencing Term 3 2020, for five continuous nights each fortnight from the conclusion of school or day‑care on Thursdays, or 3:00pm if not a school day, until the conclusion of school on Tuesdays, or 3:00pm if not a school day, commencing 23 July 2020.
7.The Child spend time with the Father during the end of Term 1, 2 and 3 school holidays each year as follows:
a)for the first week of the end of Term 1 and Term 2 school holidays in 2020, from the conclusion of school on the last day of the term until 5:30pm on the following Saturday;
b)for 10 days during the end of the Term 3 school holidays in 2020, on the basis that the Father have liberty to take the child to [Country A] for a holiday; and
c)for half of each end of Term 1, Term 2 and Term 3 school holidays in 2021 and each year thereafter as agreed between the parties, and failing agreement, with the Father for the second half of the school holidays in odd numbered years and for the first half of the school holidays in even numbered years.
8.The Child spend time with each party during the January school holidays each year (defined to be from 2:00pm on 2 January until the commencement of the new school term) as follows:
a)in 2020: with the Father from 5:30pm on Friday 10 January 2020 to 5:30pm on Wednesday 15 January 2020; and from 5:30pm on Friday 24 January 2020 to 5:30pm on Wednesday 29 January 2020; and with the Mother for the balance of the time;
b)in 2021: with the Mother from 2 January 2021 for a period of 11 days; and thereafter with the Father for a period of 11 days; and thereafter any remaining days be equally shared between the parties; and on the basis that unless otherwise agreed in writing between the parties, handovers take place at 2:00pm;
c)in 2022 and each alternate year thereafter: with the Father from 2 January each year for a period of 14 days; and thereafter with the Mother for a period of 14 days; and thereafter any remaining days be equally shared between the parties; and on the basis that unless otherwise agreed in writing between the parties, handovers take place at 2:00pm; and
d)in 2023 and each alternate year thereafter: with the Mother from 2 January each year for a period of 14 days; and thereafter with the Father for a period of 14 days; and thereafter any remaining days be equally shared between the parties; and on the basis that unless otherwise agreed in writing between the parties, handovers take place at 2:00pm.
9.To the extent necessary, the orders at paragraphs 5, 6, 7 and 8 hereof be suspended to enable the Child to spend time with the parties for special occasions as follows:
a) Christmas & New Year’s Day:
i)with the Father from 2.00pm on 19 December 2019 to 2:00pm on 26 December 2019 and each alternate year thereafter;
ii)with the Mother from 2.00pm on 26 December 2019 to 2:00pm on 2 January 2020 and each alternate year thereafter;
iii)with the Mother from 2:00pm on 19 December 2020 to 2:00pm on 26 December 2020 and each alternate year thereafter; and
iv)with the Father from 2:00pm on 26 December 2020 to 2:00pm on 2 January 2021 and each alternate year thereafter;
b) for Easter:
i)with the Mother from 6.00pm on the Thursday immediately preceding Good Friday 2020 to 2:00pm on Easter Monday 2020 and each alternate year thereafter;
ii)with the Father from 6:00pm on the Thursday immediately preceding Good Friday 2021 to 2:00pm on Easter Monday 2021 and each alternate year thereafter; and
iii) at such other times as agreed by the parties;
c)for the Child’s birthdays, the party who does not have care of the Child on the Child’s birthday be at liberty to contact the Child by way of telephone between 6:30pm and 7:00pm (WST);
d)in the event Father’s Day does not fall on a weekend that the Child is already in the care of the Father, the Father spend time with the Child from 5:30pm on the Saturday immediately preceding Father’s Day to 5:30pm on Father’s Day;
e)in the event Mother’s Day does not fall on a weekend that the Child is already in the care of the Mother, the Mother spend time with the Child from 5:30pm on the Saturday immediately preceding Mother’s Day to 5:30pm on Mother’s Day and
f) such other times as may be agreed.
10.In relation to handovers:
a)for the remainder of 2019 the Father shall collect and deliver the said Child from the Child’s day care and/or school at the commencement of his time with the Child on a school day, and deliver the Child to the Mother’s residence at the conclusion of his time with the Child;
b)to facilitate handovers on 19, 26 December, 2 January and Easter each year the Father will collect the child from the Mother’s residence or school at the commencement of his time and the Mother will collect the child from the Father’s residence at the conclusion of the Father’s time with the Child; and
c)for all other handovers, the Father shall collect the Child at the commencement of his time with the Child from the Child’s day care and/or school on a school day, or from the Mother’s residence on a non-school day; and the Mother shall collect the Child at the conclusion of the Father’s time with the Child from the Child’s day care and/or school on a school day, or from the Father’s residence on a non-school day.
11.That each party be permitted to nominate a third person to undertake handover on their behalf and if so that party advise the other by SMS of the person who will be undertaking that handover.
12.The Child have facetime and if internet unavailable telephone communication with:
a)the Father on Tuesdays and Thursdays at 7:00pm on days the Child is not in the Father’s care;
b)the Mother on Tuesdays and Thursdays at 7:00pm on days the Child is not in the Mother’s care; and
c)with the parties on other occasions as agreed in writing.
13.During the parties’ usual time with the Child as specified in these orders, where a party proposes to travel outside of the State of Western Australia but within the Commonwealth of Australia with the Child, that party shall provide the other party with not less than 30 days written notice of the proposed travel, and include:
a)a contact telephone number for the Child for the duration of the travel period;
b)a copy of the Child’s return itinerary including flight details where applicable; and
c)details of the accommodation arrangements for the Child for the duration of the travel period.
14.During the parties’ usual time with the Child as specified in these orders, where a party proposes to travel outside of the Commonwealth of Australia with the Child, that party shall provide the other party with not less than 60 days written notice of the proposed travel, and include:
a)a contact telephone number for the Child for the duration of the travel period;
b)a copy of the Child’s return itinerary including flight details where applicable; and
c)details of the accommodation arrangements for the Child for the duration of the travel period.
15.The party receiving notice of the intended travel period shall respond within seven (7) days and shall not unreasonably withhold their consent to the proposed travel.
16.For the avoidance of any doubt, the Father have liberty to travel with the Child to [Country A] during the October 2020 school holidays for a period of 10 days.
17.Upon the Father’s time with the Child commencing pursuant to these orders, the parties shall have liberty to request to spend two (2) consecutive weeks with the Child, with the parties to provide not less than 60 days’ notice of this request, with such a request not to be unreasonably denied.
18.The parties do all things and sign all such documents as necessary to maintain an Australian passport for the Child, with the parties to equally share the expense of same.
19.The Mother shall hold the Child’s passport.
20.In the event the Father is to travel with the Child outside of the Commonwealth of Australia, the Mother shall provide the child’s passport to the Father not later than fourteen (14) days prior to the proposed travel and the Father shall return the passport to the Mother within seven (7) days of the Child’s return to the Commonwealth of Australia.
21.There be liberty to the parties to apply to the Court in respect of overseas travel with the Child.
22.The Mother shall forthwith authorise the Principal of the Child’s school and/or the appropriate officer of any organisation, authority or club of which the Child is a member to release to the Father, at the Father’s expense if applicable, copies of all reports, correspondence and information in relation to the Child’s enrolment, attendance, progress, behaviour and any events or meetings whereby the parents are invited to participate.
23.The parties shall forthwith authorise any doctor, dentist, treating physician and/or any other health professional responsible for administering medical treatment to the Child to release to either party copies of all reports, correspondence and information in relation to the Child’s health, treatment, and/or medication.
24.The parties shall ensure that all clothing, educational materials, lunch boxes, school bags, sporting equipment, prescription medication and any other item sent by the other party with the Child be returned forthwith to the other party at the conclusion of their time with the Child.
25.Both parties may attend all school functions including but not limited to parent/teacher appointments, school assemblies, open days and presentations.
26.Both parties may attend sporting and other co-curricular and extra-curricular activities in which the Child is involved.
27.The party with care of the Child shall notify the other party by telephone if there is an emergency or if the Child experiences any serious health problems and/or is hospitalised whilst in their care as soon as practicable.
28.Neither party is to make decisions about medical procedures in relation to the Child without first consulting and obtaining the consent of the other party, unless in the case of an emergency where the Child requires immediate medical treatment as advised by a qualified medical practitioner.
29.Without admission as to need, the parties be restrained by injunction and an injunction is hereby granted restraining either party from:
a)denigrating the other party or any member of their family to the Child, or to any other person in the presence or hearing of the Child;
b)discussing or arguing about adult issues with the Child or in the Child’s presence or hearing, including but not limited to the care arrangements set out in these Orders;
c)changing the Child’s place of residence from the State of Western Australia without the prior written consent of the other party; and
d)physically disciplining the child by whatsoever means or allowing a third person to physically discipline the Child.
30.The parties are to keep each other informed of their current residential address and telephone number at all times.
31.In the event either party has a change to their residential address or telephone number, that party must notify the other party of their new residential address or telephone number within seven (7) days of said change.
32.In the event of any disagreement regarding the Orders, the parties shall attend upon a Family Dispute Resolution Service in the first instance.
33.All 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.
34.In 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 the Honourable Chief Judge Sutherland, at least 28 days, and no later than 42 days, from today’s date;
b)all parties must contact the Chambers of Honourable Chief Judge Sutherland 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.
35.In the event of an appeal being lodged prior to the expiration period of 42 days, paragraphs 33 and 34 above do not apply.
36.The matter be removed from the Defended List.
37.All outstanding proceedings be otherwise dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
KV
Associate13 NOVEMBER 2019
0
0
0