Ottam and Ottam and Anor
[2018] FCWA 232
•14 NOVEMBER 2018
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: OTTAM and OTTAM & ANOR [2018] FCWA 232
CORAM: SUTHERLAND J
HEARD: 2, 3, 6-9 & 13 AUGUST 2018
DELIVERED : 14 NOVEMBER 2018
FILE NO/S: PTW 7577 of 2016
BETWEEN: MR OTTAM
Applicant
AND
MS OTTAM
First Respondent
AND
MR MURPHY
Second Respondent
Catchwords:
CHILDREN - With whom a child lives - Separation of siblings - Case turns on its own facts
Legislation:
Family Court Act 1997 (WA)
Representation:
Counsel:
| Applicant | : | Self Represented Litigant |
| First Respondent | : | Mr Cole |
| Second Respondent | : | Mr Bannerman |
| Independent Children's Lawyer | : | Ms Johnston |
Solicitors:
| Applicant | : | Self Represented Litigant |
| First Respondent | : | Terrace Law |
| Second Respondent | : | Bannerman Solicitors |
| Independent Children's Lawyer | : | Calverley Johnston |
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
MRR v GR (2010) 240 CLR 461
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 Ottam & Ottam has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).
INTRODUCTION
1The parties were unable to agree the future parenting arrangements for [P], aged five. This was against a history of P’s mother suffering from long-term mental health issues which were aggravated by her episodic use of alcohol, illicit drugs and some prescribed medications; and of P’s father suffering from long-term chronic substance abuse issues.
2In April 2015, the Department for Communities (as it is now known; "the Department") apprehended P and his older half‑brother [S] and commenced proceedings in the Children’s Court of Western Australia. The Department placed both children in the care of their maternal grandfather ("GD") on an interim basis. In October 2016, the Children’s Court then made an interim order placing P in the care of the father pending trial, but left S in the care of GD. Subsequently, the Department's application in the Children’s Court in relation to P was summarily dismissed. As a result, P was left in the care of the father.
3[Towards the end of] 2016, the mother gave birth to her third child, [L]. Four days after her birth, the Department took L into provisional care. In late December 2016, the Children’s Court ordered the Department return L to the mother’s full-time care and the Department subsequently withdrew its applications in relation to both L and S, who was then still in GD’s care.
4By agreement between the mother and GD, S gradually transitioned back into the mother’s full time care. As at the date of the trial, S and L lived on a full-time basis with the mother in [City A]; and P lived on a full-time basis with the father in [Regional Town A] and spent time with his mother and siblings. There have been ongoing issues between the parties, including but not limited to P’s ongoing time with his mother and siblings; the father’s rigid and controlling attitude to the mother’s ongoing involvement in P’s life; and the practical difficulties arising from the parents living in two different towns. The situation has not been assisted by the parents’ ongoing difficulties in communicating with each other.
ORDERS SOUGHT
5GD commenced these proceedings in December 2016 and initially sought sole parental responsibility for P and that P live primarily with him and spend time with each of the parents. At the commencement of the trial, GD sought orders as set out in his Papers for the Judge filed on 22 February 2018. In summary, the key orders he sought were that:
a)The parents have equal shared parental responsibility for P.
b)P live with the mother.
c)During school term, P spend time, in a three-week cycle, with:
i)the father in week 2 from 6.00 pm on Friday until 6.00 pm on Sunday; and
ii)GD in week 3 from 6.00 pm on Friday until 6.00 pm on Sunday.
d)During the school holidays, P spend time equally with the parents, save that P spend one week of each Christmas school holiday period with GD.
6In the event that the Court was not satisfied that P should live primarily with the mother, then GD’s alternative / secondary position was that P should live primarily with him, on the basis that similar spend time with arrangements would apply.
7By the end of the trial, GD’s position was that if the Court determined that P should live with his mother, then he did not seek any specific order in relation to him spending time with P. GD was content that he and the mother would be able to make appropriate informal arrangements for him to spend time with P.
8The father sought orders as set out in his Papers for the Judge filed on 27 February 2018, as amended by him at the conclusion of the trial. In summary, the father sought that the parents have equal shared parental responsibility for P; P live with him; and P spend time with the mother each alternate weekend, for half the school holidays and on nominated special occasion days. In the event the Court ordered that P live with the mother, then the father sought mirror image orders in relation to himself spending time with P. The father did not propose any specific arrangements be made in relation to GD’s time with P, save that GD have the opportunity of spending time with P when he is in the mother’s care.
9The mother sought orders in the terms of her Papers for the Judge filed on 21 February 2018. In summary, she sought that the parents have equal shared parental responsibility for P, P transition into her full-time care and thereafter spend time with the father each alternate weekend, for half of all school holidays and on nominated special occasion days. At the end of the trial, the mother also proposed that the father be able to spend additional time with P in City A which she would try to accommodate.
10The Independent Children’s Lawyer (“ICL”) sought orders as set out in her Papers for the Judge filed on 21 February 2018, as amended by her at the end of the trial. In summary, the ICL generally supported the orders sought by the mother.
THE EVIDENCE
11GD was represented by solicitors in the early stages of these proceedings but was for the most part a self-represented litigant, including at the trial. He relied upon various affidavits filed by him during the proceedings. The father was represented by solicitors at various times during the proceedings including at the trial. He also relied upon various affidavits filed by him during the proceedings, together with the affidavits of his mother and his sister. The father also subpoenaed P’s current teacher, [Ms G] to give evidence, specifically in relation to her contact with the mother since P commenced school. Pursuant to a Court order the father was also required to, and did, subpoena his former fiancée, [Ms R] to give evidence.
12The mother was represented by solicitors throughout the proceedings including at the trial. She also relied upon various affidavits filed by her in the proceedings. In addition she subpoenaed two medical staff from the City A Mental Health Clinic to give evidence on her behalf: [Dr K] and [Ms S].
13The ICL relied upon the affidavits of the single expert witness, [Dr F] (who prepared reports both for the Children’s Court proceedings and for these proceedings). She also subpoenaed [Ms H] (a team leader from the Department) to give evidence at the trial.
The maternal grandfather
14Over a long period of time GD has been involved in providing substantial assistance and support to the mother and her children, including caring for P and S at different times.[1] Notwithstanding GD’s close and supportive relationship with the mother, they have been in occasional conflict with each other, including when GD raised concerns with the Department in April 2015 that the children were not safe in the parents' care. GD is very experienced in the child protection field, having previously worked [in a discipline involved in the child protection arena]. He had an intimate involvement in, and detailed knowledge of, these proceedings and the various Children’s Court proceedings involving the mother's three children.
[1] GD was cross-examined by the parents' respective counsels and by the ICL.
15GD impressed as being intelligent, organised and comfortable in the court room setting. Apart from some minor confusion about the years that some events occurred (which he readily acknowledged), I considered GD had a very good recollection of relevant events. It was notable that during the trial, counsel for each parent and the ICL regularly deferred to GD’s knowledge of events, for example, in confirming the dates (other than the year in some circumstances) that various events occurred and/or in locating relevant documents amongst the enormous volume of subpoenaed material and court documents.
16GD was often verbose when giving his oral evidence, and tended to give long-winded explanations that went off on tangents. However, apart from at times attempting to minimise or deflect on some minor issues that did not reflect well on him and/or the mother, I was generally satisfied that he attempted to give his evidence honestly and as he saw it. In particular, I considered that he was very open and honest about the mother’s serious mental health issues, including her episodes of self-harming over the years. GD was clearly frustrated by the attitude and actions of some of the Department's staff, including Ms H. Nevertheless, I was satisfied that generally, GD was balanced in giving his evidence and was prepared to make appropriate concessions against both his and the mother’s interests. Whilst I have no doubt that both parents and the Department have found GD very difficult to deal with at times, I was also in no doubt about his motivations and his good intentions. His primary focus was always in attempting to ensure the best interests of his grandchildren. For example, GD's efforts in regularly flying back to Western Australia from overseas over a three or four month period in 2017, simply so that he could facilitate the mother spending her regular weekend time with P, was a shining example of this.
The father
17Dr F described the father as being a fairly low-average functioning person and rigid in his attitude to many issues concerning the mother (for example, in his interpretation of court orders) and not particularly insightful into his own alcohol abuse issues.[2] Dr F’s observations coincided with my observations of the father during the trial. I considered that for the most part the father attempted to give his evidence honestly and as he saw it. However, I considered that the reliability of his evidence was adversely affected by the following matters.
[2] The father was cross-examined by GD, the mother's counsel and the ICL.
18Firstly I considered that the father was not prepared to be full and frank about some issues, in particular the circumstances of his "on again / off again" relationship with Ms R. I considered that the father’s (and Ms R’s) explanations about ending their relationship each time the matter neared trial were unconvincing and implausible. I am not satisfied that they did in fact end their relationship and consider it more likely that they were attempting to avoid the necessity of Ms R having to give evidence in the trial.
19Secondly I am satisfied that the father regularly minimised the negative aspects of his own case and exaggerated the positive aspects. For example, I am satisfied the father:
a)continually downplayed the seriousness of his alcohol consumption over the years and the adverse impact that his behaviour had, not only on his parenting of P, but also on the mother’s attempts to maintain wellness;
b)significantly minimised the concerns relating to Ms R’s history of serious poly-substance abuse, psychotic episodes when she had been using amphetamines and/or marijuana, and her violent behaviour when under the influence of illicit substances, including physically assaulting her own young son; and
c)exaggerated his involvement in P’s early life. I am not satisfied that he was significantly involved in the first 12 to 18 months, given that for long periods of time the father worked away and/or did not live in the City A / Regional Town A area. The father also maintained that he gave up work in mid-2014 so that he could care for P whilst the mother studied. However I am satisfied that the father lost his employment after failing a drug test on a work site. Although he may have occasionally assisted in caring for P, P primarily attended day-care.[3] The father’s explanation that the mother must have effectively falsified the day-care records was, in my view, contrived and implausible.
[3] Refer to Exhibit M11.
20Finally, I am satisfied that the father had a negative attitude toward the mother and due to this he regularly struggled to give his evidence in a balanced manner. For example, the father’s rigid and uncompromising attitude to the mother’s ongoing involvement in P’s life stood in stark contrast to his complacent attitude in relation to Ms R’s involvement with P.
The mother
21Although father’s counsel maintained that the mother presented with a "flat" affect in court and appeared to be attempting to manage her emotional regulation in court, this did not accord with my observations of the mother. I had no concerns about the mother’s demeanour in court and considered that she was simply being blunt and forthright in giving her evidence.
22I am satisfied that for the most part, the mother attempted to give her evidence honestly and as she saw it. However, it was obvious that she had some memory problems, particularly in recalling events in the past that occurred when she was in a state of heightened emotional dysfunction, for example, during episodes when she was self-harming. This was not inconsistent with the evidence of Dr F, which I accept, that the nature of the mother’s mental health condition was that her memory during such episodes was likely to be distorted in any event.
23I considered that for the most part, the mother attempted to give her evidence in a balanced manner. For example, I am satisfied that the mother was very candid about the seriousness of her previous self‑harming behaviours, and the adverse impact that alcohol, illicit drugs and disinhibiting drugs had on her mental health. The mother readily acknowledged that the reality was that she was lucky to still be alive, let alone functioning relatively well. However, with respect to some matters, I was satisfied that the mother was not prepared to make appropriate concessions against her interests. For example I am satisfied that she minimised her inappropriate behaviour towards Ms G during their telephone call in late May 2018.
Ms R
24Ms R commenced a relationship with the father in 2016.[4] After the Department became aware of the relationship, it insisted that the father not bring P into contact with Ms R, as it would otherwise "complicate the situation" with respect to the ongoing Children’s Court proceedings in relation to P. The father subsequently informed the Department in May 2016 that he and Ms R had ended the relationship. He also advised the Children's Court in October 2016 that he was not in a relationship with Ms R. However, shortly after P was moved into the father’s full time care [in] October 2016, the father and Ms R were openly in a relationship again. Sometime in 2017, the father and Ms R became engaged. The father informed the Court of his engagement in early 2018. Shortly after GD issued a subpoena to Ms R to attend the trial to give evidence, she wrote to the Court and advised that she and the father were no longer engaged and had ended their relationship. The trial which was listed for May 2018 was eventually adjourned. Within a very short period of time, the father and Ms R openly resumed their relationship again and became engaged again. In July 2018, I ordered the father to issue a subpoena for Ms R to attend the trial to give evidence. Shortly thereafter, she wrote to the Court and advised that she and the father had ended their relationship again.
[4] Ms R was cross-examined by GD, the mother's counsel and the ICL.
25I considered that Ms R was an unimpressive witness and that I should be very circumspect about accepting her evidence, unless the matter was uncontroversial or in effect, an admission against the father's interests. I formed the strong impression that she was not prepared to be honest, open or frank, particularly when being cross‑examined by the mother’s counsel. Instead she repetitively maintained that she could not remember or could not recall even the most basic information, such as the approximate dates that she and the father became engaged in 2017 and again in 2018 (after allegedly breaking off their first engagement). At times, Ms R’s evidence was confusing, inconsistent and/or was contradicted by the father’s and/or his mother’s and sister’s evidence. Examples of this included: whether the father and Ms R did end their relationship in the lead up to the May 2018 trial; and whether P ever stayed overnight at Ms R’s homes.
P's school teacher
26P’s school teacher Ms G gave oral evidence pursuant to a subpoena issued by the father,[5] primarily about a telephone conversation she had with the mother in late May 2018 in which she alleged that the mother abused and threatened her. Partly as a consequence of Ms G reporting the telephone call to her principal and seeking advice from her union, the mother was effectively banned from being a parent helper in the class and was refused a parent teacher meeting with Ms G.
[5] Ms G was cross-examined by GD, the mother's counsel and the ICL.
27Whilst I was satisfied that Ms G attempted to give her evidence honestly and as she saw it, I considered that she was very defensive at times and may have slightly exaggerated her complaints about the mother, in part because Ms G was upset at the prospect of the mother making a formal complaint about her. However, Ms G appropriately conceded that she was unaware of the mother’s long and often fruitless attempts to be kept informed by the father and/or the school administration of relevant school events concerning P. To her credit, Ms G also conceded she could understand that the mother may have been frustrated during the telephone call, as it appeared from the mother’s point of view to be yet another example of the school and/or the father not providing her with information that she was entitled to receive. Nevertheless, I am satisfied that did not excuse the mother’s inappropriate behaviour in blaming Ms G for the failures of the father and/or the school administration in this regard and yelling at Ms G during the call.
The paternal family members
28[Ms L],[6] the father's mother, was strongly supportive of her son's case that P should continue to live with him. It also became apparent from the subpoenaed documents in particular that Ms L also provided considerable support to the father in the Children’s Court proceedings concerning P, including supervising the father’s visits with P and regularly corresponding with the Department about various matters, including making various allegations / complaints about the mother and her parents.
[6] Ms L was cross-examined by the mother's counsel and the ICL.
29I had concerns about aspects of the reliability of Ms L's evidence for the following reasons:
a)Firstly, I am satisfied that, like the father, she tended to minimise the negative aspects of the father’s case and exaggerate the negative aspects of the mother’s case. The prime example of this was her tendency to either ignore or play down the extent of the father’s serious substance abuse issues over the years.
b)Secondly, I am satisfied that a substantial number of Ms L’s complaints and allegations about the mother and the maternal family were not based on her own knowledge, but rather were gleaned by her from Children's Court and Family Court documents and the expert reports that the father permitted her to read. Ms L conceded that apart from saying hello at court hearings, she had not seen or spoken to the mother since 2015.
30[Ms D],[7] the father's sister was also very strongly supportive of the father. However, I was satisfied I should also be cautious in accepting parts of her evidence for the following reasons:
a)Firstly, I considered that Ms D also minimised the negative aspects of the father’s case and exaggerated the negative aspects of the mother’s case. For example, she maintained that the father’s daily consumption of six stubbies of beer (with an alcohol contents of 6.5 per cent) in 2015 and 2016 was entirely consistent with her view that that father had overcome his previous alcohol abuse issues.
b)Secondly, I am satisfied that Ms D also purported to give evidence of matters that were clearly not within her own knowledge. For example, she insisted that P regularly spent extended time with the mother during the period from December 2016 until February 2017, when it was common ground that the mother only spent 5 hours in total with P during this period.
The mother's medical providers
[7] Ms D was cross-examined by the mother's counsel and the ICL.
31Dr K[8] and Ms S[9] both gave oral evidence pursuant to subpoenas issued by the mother. Dr K is a psychiatrist based at the City A Mental Health Clinic and was involved in the mother's treatment for approximately the last 3 years. Ms S is a clinical nurse specialist based at the City A Mental Health Clinic and has worked with the mother since 2016. I considered that Dr K and Ms S were very professional and helpful in giving their evidence and I had no hesitation in accepting their evidence, for example: that the mother has made enormous improvements in managing her mental health condition since early 2016; and she was no longer an active client of the Clinic due to her condition remaining stable and no longer needing regular monitoring of her mental state.
Dr F
[8] Dr K was cross-examined by the father's counsel and the ICL.
[9] Ms S gave her evidence in chief and was then not required for cross-examination by any other party.
32Dr F prepared three reports in relation to the family, the first report dated 4 July 2016 (for the Children's Court proceedings), the second report dated 22 July 2017 and the third report dated 4 July 2018 (both for the purposes of these Family Court proceedings). I considered that Dr F was very professional and helpful in giving his evidence and I had no hesitation in accepting his evidence.
Ms H
33Ms H was the Team Leader in the Department's City A office with responsibility for the family's case from July 2015 until early 2017,[10] when the Department ceased to have any further involvement with the family. I considered that Ms H was defensive in giving her evidence and initially appeared reluctant to make appropriate concessions, including that aspects of her evidence in the Children's Court proceedings, that was highly prejudicial to the mother, was factually incorrect.
FACTUAL BACKGROUND
[10] Ms H was cross-examined by the mother's counsel, the father's counsel and by the ICL.
34GD was born [in] 1957 and was 61 years of age at the time of the trial. He works [in a child protection related discipline]. He lives in City A in close proximity to the mother. He was formerly married to [Ms T], P's maternal grandmother, but they are now divorced. Ms T lives in Perth. The father was born [in] 1981 and was 36 years of age at the time of the trial. He is employed on a part-time basis as a [handyman] in his family’s [hospitality] business and lives in rental accommodation in Regional Town A with P. The mother was born [in] 1986 and was 31 years of age at the time of the trial. She is occupied on a full-time basis as a homemaker and parent and lives in her own home in City A with S and L.
35The father has a significant history of substance abuse. He started using alcohol when he was only approximately 10 years old. He had serious illicit drug abuse issues in his late teens and early 20s, including marijuana and methamphetamines. The father ceased using methamphetamines in his early 20s but he then commenced heavily consuming alcohol, becoming dependent on it by the age of 25.
36The mother also has a significant history of mental health and substance abuse issues. She has suffered from ongoing mental health issues since her mid-to-late teens when she started using illicit substances and alcohol and engaging in self-harming behaviours. Over the years, she was admitted to various mental health units, including [Hospital A], [Hospital B], [Hospital C] and the Acute Psychiatric Unit at the City A Hospital, primarily due to self-harming behaviours. I have not attempted to detail each and every incident when the mother self-harmed in these Reasons. Rather, I have referred to some incidents as examples and/or which were the subject of considerable attention during the trial. However, there is no doubt that the mother's self-harming behaviours were very serious, and included the mother cutting herself with razor blades (causing her to bleed profusely), drinking [disinfectant] cleaning products, using implements to piece/insert into her body and self‑strangulation attempts. The mother’s self-harming behaviours often coincided with her using alcohol and/or illicit drugs and/or disinhibiting medications (particularly benzodiazepines class drugs, which ironically, appeared to have been administered to the mother at times by her treating medical providers in an attempt to manage her self-harming behaviours whilst she was in hospital). At times, she also suffered episodes as a consequence of reacting to other prescribed medications. The mother has been formally diagnosed as suffering from Borderline Personality Disorder and adult ADHD.
37In March 2007, the mother was admitted to Hospital A for a period on an involuntary basis. While in Hospital A, the mother engaged in self-harming behaviour and was taken to [Hospital D] to receive medical treatment. She absconded from the hospital and had a sexual encounter with a stranger, leading to S being conceived.[11] After S’s birth [in] 2007, the mother was his primary carer. In about 2012, the mother suffered a significant decline in her mental health and S was taken into the care of the Department, who placed him in the care of GD (after a brief period with Ms T).
[11] After a lengthy police investigation, the identity of S’s biological father was eventually discovered.
38The parents met in or around September 2012, whilst both were residing at [Rehabilitation Centre A], a residential alcohol rehabilitation facility in [City B]. The father conceded that at the time he entered rehab, he was drinking about 18 cans of beer per day. The parents had a brief sexual relationship whilst at Rehabilitation Centre A, during which P was conceived. Both parents left Rehabilitation Centre A before completing their rehabilitation program. Nevertheless, even though she left Rehabilitation Centre A early, the mother was able to cease consuming alcohol (at least for a while).
39In early 2013, S was placed back into the mother’s care under a 12 month supervision order. In the lead up to P's birth, the mother and the Department were engaged in pre-birth safety planning. [In] 2013, P was born. After his birth, the mother was his primary carer. GD provided the mother with substantial assistance and support. After P’s birth, the father and some of his extended family members had some contact with P. This included the father and the paternal grandmother visiting at the maternity hospital after P was born, and the mother facilitating time with both the father, and with his extended family members when the father was working away.
40I am satisfied that the mother had ongoing issues when the father attended at her home to spend time with P, because of the father either being intoxicated when he arrived or the father wishing to consume alcohol during his visits. In August 2013, the mother, with the assistance of an alcohol counsellor at [the Alcohol & Drug Service in City A], developed a safety plan to ensure that her home remained alcohol free when the father visited to spend time with P.
41In about late 2013 or early 2014, the father was employed by [Company A] and worked away. The mother would facilitate P calling the father during these periods. The father's employment with Company A was terminated later in 2014 after failing a drug test on site. I am satisfied that in late 2014, the father resumed having occasional contact with P, which was encouraged by the mother and GD.
42In late 2014 or early 2015, the mother was diagnosed with ADHD and prescribed medication for the disorder. The mother also began consuming alcohol again which resulted in a significant decline in her mental health. In February 2015, the mother placed both children in GD’s sole care so that she could again attend residential rehabilitation at Rehabilitation Centre A in City B. While in Rehabilitation Centre A, and just prior to Easter 2015, the mother developed [a medical condition] and was hospitalised to treat it. During her hospitalisation she was given disinhibiting prescribed medications which de-stabilised her mental health functioning. The mother was discharged from hospital and prescribed disinhibiting medications, further de-stabilising her mental health.
43GD took S and P up to City B to visit the mother over the 2015 Easter period. Unbeknownst to GD, the mother informed the father that GD was taking S and P to City B and the father then also travelled to City B. On 3 April 2015, the mother and the father removed the children from GD's care. The parents spent Easter with the children in City B. I am satisfied that during this period both parents consumed alcohol and the mother's mental health further deteriorated. The mother subsequently self-harmed and was hospitalised.
44Both S and P remained in father’s care after the mother was hospitalised. GD contacted the Department regarding concerns for the children’s safety. The children were subsequently removed from the father's care by the Department. On 10 April 2015, both P and S were placed in the care of GD by the Department pursuant to a care and protection order. After the mother was discharged from [Hospital E] in 2015, she returned to Perth and lived with Ms T and sought treatment at the mental health unit of Hospital C. The mother eventually returned to live in City A.
45I am satisfied after the children were put in GD's care, the mother spent frequent and regular time with the children, supervised by a Department worker or GD; and the father spent two hours with P each Tuesday and Thursday, supervised by a Department worker.
46In late August 2015, the father provided a sample of his hair for hair strand testing. The testing was carried out in September 2015 and tested for amphetamines and methamphetamines (including ecstasy), as well as chronic excessive use of alcohol.[12] The test results for the illicit drug testing covered the period 22 April 2015 to 20 August 2015 and no illicit drugs were detected. The test results for alcohol use covered the period 22 May 2015 to 20 August 2015 (around three months) and tested for ethyl glucuronide and fatty acids ethyl esters, which are both markers of alcohol use. The test results (which were an integrated average of the total test period) showed that both markers were at levels which were suggestive of chronic excessive alcohol consumption. According to the World Health Organisation information cited in the test results, chronic excessive alcohol consumption corresponds to an average consumption of 60 g (or 7.5 units based on United Kingdom guidelines) of pure ethanol per day over several months. Following these guidelines, 1 unit equals to a single shot of spirit, 2 units equals to a 175 ml glass of wine or a pint of lower strength beer and 9 units equates to a bottle of 12 per cent wine. I am satisfied on the basis of the test results that at this time, the father still had significant issues with alcohol abuse. Between August 2015 and February 2016, the father then attended [an Alcohol & Drug Service in Perth] for counselling in relation to his alcohol use.
[12] Refer to Exhibit M6.
47[In late] 2015, the mother's aunt died due to [a terminal disease]. Following her aunt's death, the mother shaved head for charity. I am satisfied that the mother retained a bunch of long hair strands on her head specifically so that she could comply with any hair strand testing, if requested by the Department. I am also satisfied that mother did not receive any request from the Department to undergo a hair strand test, either prior to shaving her head or subsequently. Ms H conceded in cross-examination that although she and other Department staff discussed requiring the mother to undergo hair strand testing at different times, they did not request the mother to do any testing.
48The mother's aunt's death distressed the mother and she re‑commenced drinking alcohol. Her mental health deteriorated again and she had a number of presentations / admissions to City A Hospital for suicidal thoughts and self-harming.
49In December 2015, the father’s contact with P was increased to unsupervised contact every second weekend and overnight each Tuesdays. I do not accept Ms H’s evidence that at this time, the father's alcohol abuse issues were "historic" and that the father had already addressed his alcohol issues. This was because: firstly, the Department had access to the father's September 2015 hair strand test results; and secondly, the Department should have been aware that the father was still having ongoing counselling for his alcohol abuse issues.
50[In early] 2016, the mother nearly drowned while swimming at a beach in City A at night whilst under the influence of alcohol. I concur with Dr F’s assessment that this incident was not an episode of self-harm, but rather an impulsive act and a moment of poor judgment by the mother when under the influence of alcohol, which put her into a risky situation. I accept the mother's evidence that she was shocked by her near drowning experience and then resolved to stop drinking alcohol for good. The mother started attending [an alcohol support group] and various alcohol counselling and therapy groups through the City A Mental Health Service. I accept the mother’s evidence that she stopped using alcohol in January 2016 and has abstained from using it since then.
51In early-2016, the father notified the Department that he had commenced a relationship with Ms R. The Department then instructed the father that Ms R was not to have any contact with P due to her history with the Department involving her own child. In May 2016, the father informed the Department that he had ceased his relationship with Ms R. Having regard to subsequent events, I am satisfied that the father was not frank and honest with the Department about the real state of his relationship with Ms R. I am satisfied that the father and Ms R continued on with their relationship.
52The mother became pregnant with L in [early] 2016 after having sex with a person unrelated to these proceedings.[13]
[13] The father of L had no involvement in these proceedings and his identity was in my view, largely irrelevant to the issues in dispute in this trial.
53In July 2016, Dr F published his first report. At this time, S's father had occasional involvement in S's life and so he also was interviewed for the purposes of the report. The salient parts of the report were as follows:
a)In preparing his report, Dr F met with the mother, the father, GD, Ms T and S's father. He also interviewed S but not P due to P's young age. In addition, Dr F reviewed the court documents and subpoenaed materials for the Children's Court proceedings.
b)In terms of relevant history, Dr F commented on the parties' struggles with mental health issues and substance abuse issues. He commented that:
i)GD has struggled with mental health issues, including burnout, at different times and one of his management strategies more recently had been to go away on holidays to help him "reset" sufficiently to return to work and life.
ii)The mother started to show mental health issues in her last year of school and that she also started using illicit substances and consuming alcohol at this time. He considered the mother's borderline personality disorder emerged in her mid-teens and subsequent traumas she experienced compounded layers upon her situation.
ii)The father reported that while he had drunk alcohol heavily in the past, he had a relationships that broke down and then he was working away. His drinking escalated while he was working away to the point where it was interfering with this work. The father spoke about having 18 drinks a day and this is why he went into rehabilitation in City B.
c)Dr F commented that the mother had shown some quite considerable improvement in reducing the frequency of her hospital admissions. While there had been a marked reduction in episodes, there had been some periods where she relapsed to quite dramatic levels and these episodes appeared to be associated with alcohol and stressful circumstances, in particular, when her aunt passed away.
d)Dr F commented that he did not think it was disputed that if the mother was intoxicated, she may self-harm in a severe and dramatic fashion.
e)Dr F identified five levels of risk:
i)Firstly, the mother may kill herself and the children (S and P) see it. Dr F noted that this risk was significantly lower than when the mother was in her early 20's because the number of incidents is a lot less, however the nature of her harm is quite severe and the risk of her dying still remains a possibility.
ii)Secondly, the children may be exposed to or involved in a self-harm event. For example, spurting blood. Dr F commented that the parties who had witnessed this and the documents he reviewed showed that it would certainly be a disturbing scene for the children. From Dr F's discussions with S, he found no evidence that S has any recollection of graphic incidents of this nature, although there had been exposure to at least one incident, just no major graphic incidents. The incident S recounted was that the mother said she was feeling faint and told him to run to a neighbour. S heard her hit the ground and came back to see her on the ground and saw that she was "spitting bubbles".
iii)Thirdly, the children may be exposed to the aftermath of a self-harm event. Dr F noted there was a level of risk of the children being aware of circumstances of things happening to the mother and the implementation of the safety plan. This was based on evidence of S being present when the mother has gone in ambulances, so he was aware of the consequences of the mother's actions even though he may not have been directly exposed to it.
iv)Fourthly, the impact on the children of the mother being in hospital and absent from periods of time.
v)Fifthly, the mother's personality may generate issues. Dr F commented that people with personal disorders can be reactive, threatening, bullying and so forth and they can also be difficult to deal with. GD was unwilling to reveal the identity of S's father to the Children's Court because he alleged the mother had threatened to take legal action against him if he did. The mother would also not have discretionary contact organised through GD because the two of them were clashing. This led Dr F to conclude the mother's personality style can impact on providing what is best for the children.
f)Dr F noted that while there was no doubt the children had been present in the vicinity on some occasions the mother engaged in self-harm, it was in dispute as to whether or not the children had ever witnessed the actual harm the mother had engaged in.
g)Dr F commented that GD put forward elaborate safety plans that maximised the opportunity to prevent the children's exposure to risk and to deal with the situation. However, the plan was predominately "GD based" and when GD was away on holiday taking his own respite, the mother's situation was most vulnerable.
h)Dr F commented that historically, the mother's personality disorder had been severe and alcohol or drugs were a significant part of her more severe behaviour. In more recent years, she had settled down somewhat. While she was still prone to unpredictable, sudden events, they appeared to be diminishing. At the time, he concluded that the mother was in a fairly stable place considering her history, but that the danger was that she could change unpredictably and very quickly. She recognised that alcohol was a problem and had undergone substantial involvement in dialectical behaviour therapy and as a result she was much improved, although there was still a risk of relapse.
i)Dr F reported that the father was fairly straight speaking and down the line. He was a fairly low‑average functioning person who has had a fairly significant alcohol problem but that the father did not see it as a problem anymore. While the father reported drinking six beers on a weekend night, he said he did not have a problem because he was not going to drink when P is around. Dr F was of the view this attitude placed the father at risk of relapsing into an alcohol problem. When Dr F asked the father why he would not give up drinking to improve his chances of getting his son, he explained that 90 per cent of the population drank. Dr F formed the suspicion that the father drank more than he admitted. Dr F also noted that the father had a history of driving offences, including excess 0.08 in 2012, various offences of driving without a licence, as well as burglary and intent to burgle.
j)Dr F noted that while GD was highly supportive of the mother, he tended to do things on his own terms. Therefore, there was a degree of enmeshment and control in his way of dealing with things. Notwithstanding this, GD's motivations were the wellbeing of the mother and the children, including a desire for the children to have a relationship with their fathers. Dr F was of the view that GD was competent and capable and doing a good job with the children.
k)Dr F noted the mother's more recent hospitalisations had been initiated by the mother or had been for short periods, rather than the involuntary hospitalisations in the past. His observation was that the mother was quite competent and appropriate with the children. If her mental health was stable and she stayed off alcohol then in his opinion there were many aspects to her parenting which were quite beneficial.
l)Dr F saw the father as being able to provide a basic level of care as long as he did not return to alcohol consumption.
m)Despite Dr F's view that the children were quite safe and secure in GD's care, he was of the opinion that that GD was best suited to be a respite carer and did not see GD as a long-term carer option.
n)Dr F was of the view that P and S had a very strong attachment to GD and the mother and that they were both children's primary attachments and felt secure with them.
o)Dr F was of the view that P had a good relationship with the father. He suspected that given the history, P's time with the father was ramped up a little too rapidly for P, especially going to two-night blocks. However, P appeared to be getting more used to it now.
p)Dr F opined that P may suffer from some language / speech problems and behavioural issues and recommended the child be assessed for ADHD in approximately 12 months' time. Dr F raised concerns about the father's capacity to deal with such issues, as he did not see the father having the psychological sophistication to necessarily pursue P's needs in an active fashion. On the other hand, Dr F considered the mother and GD as likely to be more aware of P's needs and to be able to address them.
q)The greatest risk Dr F identified for P (and S) was indirect exposure to the mother having an incident of self-arm. The exposure had been limited but there was a degree of risk. The degree of risk was directly related to the mother's continued stability and to her consumption of alcohol. While he formed the view the mother did not want to put her children at risk of harm, the issue for the mother was when alcohol affected her it overrode her protective mechanisms which may then inadvertently put the children at risk.
r)Dr F also had concerns about the father's drinking and the fact that the father did not see his continued drinking as a problem. The father may indirectly put P at risk because of his own substance abuse. Dr F also held concerns about the father's lack of insight, and that there was a risk he may facilitate further problems with the mother through alcohol and associated actions.
s)Dr F noted P and S's main continuity, regardless of whom they lived with, was each other. This was important to them and whatever the outcome was, it is important that they have time with each other. The mother and GD were of the view that the paramount consideration was keeping the boys together. Dr F was of the view it was very important to keep the boys together because it would affect their relationship for life, however, he did not consider it to be a paramount consideration and had to be considered against other needs.
t)Dr F considered the best interests of the children would be served if the mother was able to parent them and at the same time build up time with their fathers. In this way, if the mother had another episode of significant self-harm then the children would be able to transition to their fathers' care. Therefore, he recommended working with the mother over a six month period, increasing her daytime unsupervised contact with the children, during which time the children continue to reside with GD. During this period, he recommended the father maintain the current arrangement of four nights a fortnight and S's father gradually increase his time to two nights every second weekend.
54A hearing was held in the Children's Court in July 2016 to hear the mother's application to spend unsupervised time with S and P. It was obvious from the court documents in the Children's Court proceedings that the Department did not agree with various aspects of Dr F’s report and opposed the mother's application. The Children’s Court subsequently made interim orders for limited time between the mother and the boys.
55In August 2016, the Department filed in the Children's Court proceedings a written proposal in relation to the boys to reflect Dr F's recommendations.[14] This was notwithstanding in the proposal the Department expressed its disagreement with certain aspects of Dr F's report and the interim order made by the Children's Court, and expressed that the proposal was not its preferred plan. The proposal provided:
[S] and [P] are currently placed with [GD].
At paragraph 135 of his report [Dr F] recommends approximately 6 months of increasing daytime unsupervised contact between the children and [the mother].
The Department's intention is to maintain the placement of both [S] and [P] with [GD] as the primary placement and, in parallel, work with [the father] and [[S]'s father]. The Department will work with [the mother] over a period of 6 months to see if [the mother] can work with the Department in building a safety plan to demonstrate to the Department's satisfaction that she has met the safety goals outlined in this proposal. If this is achieved, the Department will explore reunification of the children with [the mother] over the following 18 months with a view to closing the case file at the expiry of the order [or sooner if [the Department] assessed that the children will be safe in [the mother's] care]. At the same time, the Department will work to ensure that the children further develop their attachment to their fathers and paternal family members.
If in this 6-month period [the mother] relapses or does not follow the Signs of Safety safety planning process then the children will be transitioned into the care of their respective fathers, based on the recommendation of [Dr F] that the children will be better off with the consistency of their fathers rather than the care of their grandfather. [GD] has stated clearly that he does not wish to care for the children long-term.
The Department would consider a relapse to mean an incident where [the mother] self-harms and/or where Ambulance or Police become involved due to self-harming or other behaviour which places [the mother] and/or the children at high risk of harm. This would include relapses into alcohol use or abuse or prescribed or illicit substances. The Department would not consider it a relapse if [the mother] is insightful enough to attend medical support prior to self‑harming and is feeling in need of support and assistance, provided the children are not adversely impacted by any disruption to the continuity of care.
[14] Refer to GD's affidavit filed 20 October 2017, annexure O.
56In mid-August 2016, the mother was [injured in an accident] and was briefly hospitalised for minor injuries. In August and September 2016, the mother was admitted to the Acute Psychiatric Unit in City A on numerous occasions, on both a voluntary and involuntary basis. During her admissions, the mother was administered benzodiazepines by her treating medical providers to try to assist in the management of her behaviour and to assist the mother to cease her use of another prescribed medication (Stilnox), which had potentially harmful effects for the mother's unborn child. I am satisfied that the prescribed benzodiazepines had a significant adverse impact on the mother's mental health stability. During this period the mother repeatedly self-harmed while in hospital, and was then discharged from hospital prior to her health stabilising, and then had to be re-admitted (and administered benzodiazepines again), creating a cycle of episodes of the mother self-harming whilst she was in hospital. Although Ms H initially maintained that the mother also had episodes of self harm between 6 August 2016 and 6 October 2016 in the community (as well as in hospital), I am not satisfied this was the case. After searching her records, Ms H was unable to point to any instances of the mother self-harming in the community as she alleged, and no other party was able to identify any such instances.
57On 6 October 2016, there was a further hearing in the Children's Court. During the hearing, the Department advised the presiding Magistrate that it sought an order that P be placed in the care of the father. After hearing extensive submissions, the presiding Magistrate subsequently made orders to place P in the care of the father pending the final trial in the Children's Court proceedings. The transcript revealed that during her submissions, the counsel for the Department repeatedly made reference to an affidavit or affidavits previously sworn by Ms H. In particular, counsel for the Department asserted that the mother was asked to undergo hair sample testing in 2015 and immediately shaved her head, saying she was doing it for charity. As I have already found earlier in these Reasons, the Department did not ask the mother to undergo a hair sample test either prior to or after the mother shaved her head in 2015 and the mother left a bunch of long hair strands on her head, specifically so that she could comply with any hair strand testing, if requested by the Department.[15]
[15] During the Children's Court hearing on 6 October 2016, counsel for the Department also asserted that the mother was addicted to benzodiazepines. Refer to the transcript of the proceedings in the Children's Court for 6 October 2016: annexure R to the mother's trial affidavit at page 224 of the transcript. No such assertion was made by any party at the trial in these proceedings. However, there was ample evidence of the medications being prescribed by the mother's treating medical providers in hospital and under the direct supervision of her medical providers.
58Shortly after the Children's Court hearing, with the support of the maternal grandparents, the mother temporarily moved back to Perth to stay with Ms T, to try to break the cycle of hospital admissions and self-harming whilst in hospital, and to prepare for L's birth. The mother attempted to make arrangements to spend time with P, both through the Department and with the father, but with very limited success. However, making any such arrangements was complicated by the mother's temporary move to Perth. GD also attempted to make arrangements for P to spend time with S, again with very limited success. I am satisfied that from 6 October 2016 when P went into the father's care until orders made by this Court on 3 February 2017, the father facilitated the mother spending a total of only five hours with P. Fortunately GD and the father were able to agree for P to spend more time with S, particularly during the Christmas school holidays, albeit still very limited time.
59On 17 November 2016, a further hearing was held in the Children's Court, during which the mother tried to seek further orders in relation to her time with P. The presiding Magistrate eventually determined that the Department's application in relation to P should be summarily dismissed. Thereafter, P remained in the father's care, but without any formal arrangements being put in place for P to spend time with his mother, S or other maternal family members.
60The mother gave birth to L [in late] 2016. GD commenced these Family Court proceedings two days later. [In late] 2016, just four days after she was born, the Department made an ex-parte application to the Children's Court for L to be apprehended from the mother. This was notwithstanding that: firstly, the Department had failed to comply with its own requirements in relation to pre-birth safety planning; secondly the mother and her family had done considerable work to prepare a comprehensive safety plan for L; and thirdly the mother and L were still in the maternity hospital, where they were receiving a high level of support from the staff. On 23 December 2016, the Children's Court ordered the Department to return L to the mother.
61On or about 12 January 2017 Ms H swore an affidavit in support of the Department's application regarding L, in which she deposed that "When asked to undergo hair sample testing in 2015, [the mother] immediately shaved her head and said she had done it for charity." During her cross-examination by the mother's counsel, Ms H eventually conceded that her evidence in this regard was wrong.
62Subsequently in January 2017, the Department withdrew its Children's Court applications in relation to L and S.
63The mother filed her responding documents in the Family Court proceedings on 30 January 2017. On 3 February 2017 the Court made consent orders for the mother to spend supervised time with P on a four weekly basis, for four hours only in week one and for seven hours only in week three; and GD to spend time with P for one weekend in four from 12.00 noon Saturday until 2.00 pm Sunday in week three. As from 1 April 2017, the mother's time with P in week one of the cycle progressed to unsupervised time from 10.00 am Saturday until 2.00 pm Sunday. The Court also made numerous other procedural orders, including for the appointment of an ICL.
64The father filed his responding documents on 10 March 2017. Orders were made on 17 March 2017 for the father and the mother to each undergo hair strand drug analysis testing. Both parents undertook hair strand drug analysis testings and both produced clear results.
65Dr F was reappointed in May 2017 and prepared a second report in relation to the family in July 2017. The salient parts of the report were as follows:
a)In preparing his report, Dr F met with the mother, the father, GD, Ms T and S. He also spent time with P alone and separately with each of his parents in their respective homes, which for the mother included having S, L and GD in attendance. In addition, Dr F reviewed the court documents, subpoenaed materials and documents provided by the father and documents provided by the mother.
b)Dr F noted the mother reported she had been attending [an alcohol support group] and that in terms of her alcohol use, she recognised that she was at risk of relapse even though she had been sober since January 2016. The mother seemed a lot more stable and Dr F noted that it is not uncommon that people with borderline personality disorder tend to mature in their 30's. The mother had made significant improvement in her mental health, although Dr F still held the view that she was likely to have further episodes which should become less frequent. It was important there she had a safety plan and that it was strictly adhered to.
c)With respect to the father, Dr F noted his attitude towards alcohol had changed from previously and he was no longer defending his alcohol use but stating that he was not drinking of any note when P was in his care. The father had completed some parenting courses and Dr F was pleasantly surprised with how the father related to P and the circumstances for P appeared quite positive. The father had been on a rapid learning curve in his parenting and was doing a reasonable job, albeit his parenting was somewhat basic.
d)Overall Dr F found the father to be quite black and white in his thinking and not overly insightful.
e)Dr F noted that P was quite bright and very observant and was aware of many things happening around him. He still suspected P may have some learning and behavioural difficulties and was also of the view that the changes in P's primary carers on several occasions was likely to have done some attachment damage to P.
f)Dr F was not satisfied that the mother was then a risk to P and was of the view she did not need to be supervised although he acknowledged there may become a risk to P if the mother had a mental health breakdown.
g)Dr F recommended P immediately commence spending alternate weekends with the mother from Friday until Sunday (or Monday morning if the mother and GD could accommodate the morning school run), unsupervised and then after six months, if the mother's mental health has remained stable, to look at increasing the time.
66A Readiness Hearing was listed for 8 August 2017 but this was vacated and relisted to 23 October 2017. GD filed his trial material in September 2017. The mother and the father each filed their trial material in October 2017. On 23 October 2017, orders were made for:
d)In my view, both parents' proposals for P's birthday, the parties' own birthdays and S and L's were either not practicable (for example, were somewhat disruptive on the birthdays that fell on a school day) or did not always enable P to celebrate his and/or his parents' birthdays with the respective parent and families. Subject to the parties and the ICL having liberty to make further submissions, I propose to make orders that if P's birthday or the father's birthday falls on a school day (including on a Friday that coincides with the commencement of the father's alternate weekend time with P), then the father spend time with P from the conclusion of school until 7.00 pm; and that if P's birthday or the parents' birthdays fall on a non-school day, then the parent who does not then have the care of P spend time with P from 12 noon until 5.00 pm. In relation to S’s and L’s birthdays, I propose to make orders that if the birthdays fall on a non-school day that coincides with the father's usual time with P, then the time be suspended from 12 noon until 5.00 pm.
e)The mother sought that specific orders be made in relation to Anzac Day. I reiterate that little, if any, time was devoted to this issue during the trial. I am not persuaded that I should make any specific orders in relation to this public holiday, particularly as in some years, the holiday falls within the end of Term 1 school holidays in any event.
113In order to reduce the potential for confusion and conflict between the parties, I propose, wherever possible, to standardise the handover times.
114The parties and the ICL agreed that orders should be made in relation to P having regular communications with the parents, various injunctions, and exchange of relevant information, including educational and health information concerning P. I was satisfied it was appropriate to make such orders, albeit I propose to modify the wording of some orders slightly, in particular, to adopt the standard orders used by the Court wherever possible. Subject to the parties and the ICL having liberty to make further submissions, I am satisfied that the parties should be able to provide a copy of the court orders to P's current school and new school.
115Both parents sought numerous other orders in relation to P, many of which I considered to be either contrary to the parents' agreement that they have equal shared parental responsibility for P, or were overly prescriptive and likely to lead the parties into further dispute. I was not persuaded that it was appropriate to make such orders. Examples included:
a)The father seeking specific orders in relation to major events,[20] education and extra-curricular activities,[21] and "non-interference" injunctions;[22] and
b)The mother seeking specific orders in relation to how P was to be transported to school,[23] P communicating with S and L when in the father's care, over and above the agreed communication arrangements,[24] and requiring each party to notify the other of the details of any other person staying in their respective homes on a regular basis.[25]
[20] Paragraphs 15 and 16 of the father's Minute of Final Orders Sought.
[21] Paragraphs 20 to 24 of the father's Minute of Final Orders Sought.
[22] Paragraphs 27 to 35 of the father's Minute of Final Orders Sought.
[23] Paragraph 23 of the mother's Minute of Proposed Orders.
[24] Paragraph 33 of the mother's Minute of Proposed Orders.
[25] Paragraph 40 of the mother's Minute of Proposed Orders.
116In relation to the travel arrangements, I considered the orders proposed by both parents were either unnecessarily complex and/or likely to lead the parties into further dispute. Subject to the parties and the ICL having liberty to make further submissions, I am satisfied that both parents should have liberty to travel interstate and overseas with P during their regular time with him (and if specifically consented to in writing prior to booking, then during the non-travelling party's time with P), provided that they give proper prior notice of the proposed travel. Given the difficulties the parents have had in their communications to date, I am not satisfied that the non-travelling party should be simply able to refuse his/her consent to the travel, putting the other party to the costs and inconvenience of having to seek a court order. In the event that the non-travelling party considers that he/she has a reasonable basis for opposing the travel, then it should be incumbent upon that party to apply to the Court and set out the basis upon which they oppose the travel occurring. I am also satisfied it is appropriate for orders to be made requiring the parties to obtain a current passport for P, and for the passport to be held by the court Registry.
117Finally, the mother sought an order that the father not be permitted to bring P into contact with Ms R. Given my concerns about Ms R’s and the father's evidence regarding the "on again / off again" nature of their relationship and my concerns about whether Ms R has successfully addressed her poly-substance issues and violence issues, I am satisfied that the order sought by the mother was appropriate.
ORDERS
118I propose to issue these reasons from Chambers in order to give the parties an opportunity to consider them and my proposed orders. I propose to make the following orders:
1.All previous orders in relation to the child, [P], born [in] 2013, ("[P]") be discharged.
Parental responsibility
2.[MR MURPHY] ("the father") and [MS OTTAM] ("the mother") have equal shared parental responsibility for [P].
Transitional arrangements
3.From the date of these orders until the end of Term 4, 2018, [P]:
a) live with the father; and
b)spend time with the mother each alternate weekend from 5.00 pm Friday until 5.00 pm Sunday.
4.During the 2018/2019 summer school holidays, [P] live with the mother and the father on a week about-basis as follows:
a)With the mother from 9.00 am Saturday 15 December 2018 until 5.00 pm Saturday, 22 December 2018;
b)With the father from 5.00 pm Saturday 22 December 2018 until 5.00 pm Saturday, 29 December 2018;
c)With the mother from 5.00 pm Saturday 29 December 2018 until 5.00 pm Saturday, 5 January 2019;
d)With the father from 5.00 pm Saturday 5 January 2019 until 5.00 pm Saturday 12 January, 2019;
e)With the mother from 5.00 pm Saturday 12 January 2019 until 5.00 pm Saturday, 19 January 2019;
f)With the father from 5.00 pm Saturday 19 January 2019 until 5.00 pm Saturday, 26 January 2019; and
g)With the mother from 5.00 pm Saturday 26 January 2019 until 5.00 pm Saturday, 2 February 2019.
Live with and spend time with arrangements
5.From 5.00 pm Saturday, 2 February 2019, [P]:
a) live with the mother; and
b) spend time with the father:
i)during school term, each alternate weekend from the conclusion of school on Friday (or 5.00 pm if the Friday is a non-school day) until the commencement of school on Monday (or 5.00 pm if the Monday is a non-school day), with the father's time pursuant to this order re-commencing at the end of the first week of each new school term;
ii)during the end of Term 1, Term 2 and Term 3 school holidays each year, for one half of each school holiday period at times to be agreed in writing between the mother and the father and failing agreement, the father spend time with [P] from the conclusion of school on the last day of the school term until 5.00 pm on the middle Saturday; and
iii)for one half of the end of Term 4 summer school holidays each year, at times to be agreed in writing between the mother and the father and failing agreement, the father spend time with [P] on a week‑about basis, commencing from 9.00 am on the first Saturday after the conclusion of Term 4 each year, and each alternate week thereafter, and with handovers to occur at 5.00 pm each following Saturday.
6.For the purposes of paragraph 5(b) (iii) hereof, the "end of Term 4 summer school holidays" is defined to commence at 9.00 am on the first Saturday following the last day of Term 4 and end at 5.00 pm on the last Saturday prior to the commencement of the new school year.
7.On the Mother’s Day weekend each year, irrespective of the usual arrangements, [P] spend time with the mother from the conclusion of school on the Friday until the commencement of school on the Monday.
8.On the Father’s Day weekend each year, irrespective of the usual arrangements, [P] spend time with the father from the conclusion of school on the Friday until the commencement of school on the Monday.
9.For the purposes of the Christmas festive period each year, irrespective of the usual spend time with arrangements, [P] spend time with the parents as follows:
a)Commencing in 2018 and each alternate year thereafter, from 9.00 am on Christmas Eve until 2.00 pm on Christmas Day with the father; and from 2.00 pm on Christmas Day until 6.00 pm on Boxing Day with the mother; and
b)Commencing in 2019 and each alternate year thereafter, from 9.00 am on Christmas Eve until 2.00 pm on Christmas Day with the mother; and from 2.00 pm on Christmas Day until 6.00 pm on Boxing Day with the father.
10.In the event that the Easter long weekend in any year does not coincide with the end of Term 1 school holidays, then [P] spend time with the father and the mother on an alternating basis, commencing with the father, from the conclusion of school on the Thursday immediately prior to Good Friday until the commencement of school on the Tuesday immediately following Easter Monday.
11.In relation to [P]'s birthday:
a)if [P's] birthday falls on a school day, then the father spend time with [P] from the conclusion of school until 7.00 pm;
b)if [P's] birthday falls on a non-school day, then the parent who does not then have the care of [P] spend time with [P] on his birthday from 12 noon until 5.00 pm.
12.In relation to the father's birthday:
a)if the father's birthday falls on a school day, then the father spend time with [P] from the conclusion of school until 7.00 pm;
b)If the father's birthday falls on a non-school day, then the father spend time with [P] from 12 noon until 5.00 pm.
13.In the event that [P] is not otherwise in the care of the mother on the birthdays of his siblings [[S] ([date]) and [L] ([date])] or on the mother’s birthday, then the father's time with [P] be suspended and the mother spend time with [P] on her / [S’s] / [L’s] birthday from 12 noon until 5.00 pm.
Handovers
14.Unless otherwise agreed in writing between the father and the mother, handovers for the purposes of paragraphs 3 and 4 hereof take place as follows:
a)the father or his agent deliver [P] to the mother's residence at the commencement of [P’s] time with her; and
b)the mother or her agent deliver [P] to the father's residence at the conclusion of [P] time with her.
15.Unless otherwise agreed in writing between the father and the mother, handovers for the purposes of paragraphs 5 to 13 hereof, handovers that do not take place at [P’s] school take place as follows:
a)the father or his agent collect [P] from the mother's residence at the commencement of [P’s] time with him; and
b)the mother or her agent collect [P] from the father's residence at the conclusion of [P’s] time with him.
Other parenting orders
16.Each of the mother and the father be restrained by injunction and an injunction is hereby granted restraining each of them from changing [P’s] principal place of residence outside of the [City A]/[Regional Town A] area.
17.Each of the mother and the father forthwith do all acts necessary and sign all documents necessary to enrol [P] in [Primary School A], [City A], to commence from Term 1, 2019.
18.Each of the mother and the father be restrained by injunction and an injunction is hereby granted restraining each of them from changing [P’s] school from [Primary School A] without the prior written consent of the other party.
19.Each of the mother and the father be restrained by injunction and an injunction is hereby granted restraining each of them from:
a)consuming alcohol to excess or illicit substances within 24 hours of caring for [P], or allowing any third parties to be in the presence of [P] if they have consumed alcohol to excess or used any illicit substance;
b)denigrating any other party in the presence of or hearing of [P], or allowing any other third party to do so;
c)discussing the Court proceedings in the presence of or hearing of [P], or allowing any third party to do so;
d)physically disciplining [P] or allowing any third person to do so;
e)exposing [P] to family violence or permitting any third person to do so; and
f)causing or permitting [P] to be in the presence of or have any contact whatsoever with [Ms R].
20.The mother and the father have liberty to communicate with [P] by telephone or Facetime at 6.00 pm on each Tuesday, Thursday and Saturday that [P] is not otherwise spending time with the mother or the father.
21.Each party keep the other informed of their home address, email address, and mobile telephone numbers.
22.The mother and the father do all things necessary and sign all documents necessary to obtain a passport for [P], with such passport to be held by the Family Court of Western Australia.
23.The mother and the father have liberty to travel with [P], outside the Commonwealth of Australia for the purpose of holidays during their usual time with [P] pursuant to these orders provided that:
a)the travelling party give the non-travelling party not less than one month’s written notice of his or her intention to travel;
b)not later than 14 days prior to departure, the travelling party provide the non-travelling party with a copy of:
i) the proposed travel itinerary; and
ii)contact details for [P] being the address where he will be primarily staying for the duration of the said holiday together with a telephone contact number;
and the travelling party keep the non-travelling party informed of any changes to these arrangements; and
c)there is not a current "Do not Travel" warning issued by the Department of Foreign Affairs and Trade at the time of departure in relation to the proposed destination.
24.Each party shall provide the other party with notice of any significant medical issues concerning [P] including details of any treating practitioner and if requested to do so by the other party, shall authorise any treating practitioner to discuss [P’s] medical issues with that party.
25.Each party be permitted to attend any school events or activities that parents would ordinarily be expected and invited to attend including but not limited to school assemblies, parent / teacher evenings and school carnivals.
26.Each party be permitted to contact the school that [P] attends to provide them with copies of any school reports, reports on behavioural issues, school circulars or notices concerning functions, parent / teacher nights and other school activities to which parents would ordinarily be expected and invited to attend.
27.Each party be permitted to provide [P’s] school(s) with a sealed copy of these orders.
28.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.
29.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 Justice Sutherland, at least 28 days, and no later than 42 days, from today’s date;
b)all parties must contact the Chambers of Justice 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.
30.In the event of an appeal being lodged prior to the expiration period of 42 days, the two immediately preceding paragraphs do not apply.
31.The matter be removed from the Judges’ Defended List.
32.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
ASSOCIATE14 NOVEMBER 2018
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