P and J
[2010] FCWA 53
•9 MARCH 2010
[2010] FCWA 53
| JURISDICTION | : | FAMILY COURT OF WESTERN AUSTRALIA |
| ACT | : | FAMILY COURT ACT 1997 |
| LOCATION | : | PERTH |
| CITATION | : | P and J [2010] FCWA 53 |
| CORAM | : | THACKRAY CJ |
| HEARD | : | 8 & 9 MARCH 2010 |
| DELIVERED | : | Ex tempore |
| FILE NO/S | : | PTW 2630 of 2004 |
| BETWEEN | : P |
Applicant
AND
J
Respondent
Catchwords:
CHILDREN - Parental responsibility - With whom a child lives - With whom a child spends time - Family Violence - where a violence restraining order is in place between the parents - Best interests of a child - where the father works fly in fly out - where the father's work arrangements are unpredictable
Legislation:
Family Court Act 1997
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Self Represented Litigant |
| Respondent | : | Self Represented Litigant |
[2010] FCWA 53
Solicitors:
| Applicant | : |
| Respondent | : |
Case(s) referred to in judgment(s):
B and B
Family Law Reform Act 1995 (1997) FLC 92-755
Champness & Hanson [2009] FamCAFC 96
Marsden and Winch (No. 3) [2007] FamCA 1364
Mulvany & Lane [2009] FamCAFC
U v U (2002) 211 CLR 238
[2010] FCWA 53
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1 THACKRAY CJ: [Mr P], who I will refer to as “the father”, and [Ms J], who I will refer to as “the mother”, have been involved in disputes in the Family Court for six years, largely concerning arrangements for the welfare of their two children, [Jack] born in December 1997, and [Helen], born May 2000. Jack is now 12 years of age and Helen is nine years of age. They are in years 7 and 5 respectively at school.
2 The orders sought by the father are set out in the Minute which he provided to
the Court yesterday at the commencement of the trial. The orders sought by the
mother were contained in a Minute she filed in July 2009.3 There are two main issues on which I am required to rule. The first relates to
parental responsibility. The father considers that both parents should have parental responsibility for major long term issues concerning the children. The mother considers that she should have sole parental responsibility for issues concerning the children’s health, education and Jack’s speech and language therapy requirements, but otherwise agrees that there should be shared parental responsibility.
4 The second main area of dispute relates to the time that the children are to spend
with each parent. The father proposes that the children may spend 150 days and/or nights with him. The order he seeks indicates that “this allotment of time spent together can be in block form, where the mother shall have contact every second weekend from after school Friday until Monday drop at the school.”
5 On the other hand, the mother proposes the continuation of arrangements
contained in Court orders made in July 2005, as varied by consent orders made in May 2007. These orders involve the children spending alternate weekends with the father from after school on Friday until the commencement of school on Monday, extending to the commencement of school on Tuesday if the weekend is a long weekend. The orders also involve the children spending half of each school holiday period with each of their parents.
6 The mother also proposes that she be able to telephone the children on two
occasions each week when the children are with their father, in the same way as the father is able to telephone them whilst they are with the mother, pursuant to the terms of the existing orders.
7 The father’s Minute contains proposals for a variety of other matters; not all of which are easy to comprehend. I incorporate all of the orders he seeks below:
1) Passports for over sees travel during holidays, unencumbered.
2) The father shall be, the mothers first choice, with regards for responsibility of the children, when she is unavailable for any time over two hours, in which case the father shall continue with school and after school activities as is the “norm.”.
3) Phone contact. shall continue, twice a week mother is responsible for calls to fathers phone and or computer, be extended as to allow skype , email and msm live .
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4) Father have input with children and Mother with regards to secondary schools. and after school activates, which will include sports and study programs. The children are allowed as they wish, to be picked up from any and or all of the above-mentioned by either parent. Both parents may attend any function children are involved or attending, except for private invitation. i.e. party’s.
5) Children may spend 150 days and or nights with father. This allotment of time spent together can be in block form, where the mother shall have contact every second week end, from after school Friday until Monday drop at school.
6) When, father arranges travel for children he will give mother reasonable notice of such plans and arrangements. Mother shall be aware of her needs to deliver the children to airport and see them safely away.
7) When children have arrangements for after school activates, they shall take with them all such items as is required. Responsibility of the enforcement of such arrangements lay with the parent, last in contact with.
8) Both of each, children to be enrolled in a winter and summer sports. Jack and Helen both have piano lessons the father be responsible for costs and teacher.
9) With regard to family, the children are allowed to visit their grand mother, and cousins as is her wish, that I convey this request to the court.
10) For the arrangements of these orders. With regard to correspondence between the mother and father, letter, email, phone message may be sent to either party and reply must be sent as soon as is reasonable possible. fax to head of school be allowed. So as he or she can deliver sealed to either mother or father through the children.
Background
8 The parties went to trial in relation to matters concerning the children in July
2005 before the Honourable Justice Tolcon. Although the background provided by his Honour is brief, it certainly suffices for present purposes, and I do not intend to repeat all of the findings his Honour made.
9 I do, however, need to refer to a few salient features from his Honour’s
judgment. In paragraph 5 of his reasons, Tolcon J found that the parties have an acrimonious relationship and noted that the father had admitted that he had breached a violence restraining order on four occasions. He also noted that in July 2005 the father had been convicted of assaulting the mother and had been fined.
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10 He went on to find in paragraph 8 of his reasons that it was “unlikely that they
will be civil towards one another or behave appropriately in the presence of the children”. In paragraph 9, he said that he was satisfied on the evidence that the parties do not enjoy a good relationship and it is not likely to improve.
11 Importantly, in paragraph 11, his Honour said:
The respondent [that is the father] seeks an order for joint residence of the children, stating he does not wish to be a weekend father. In the present instance where the parties –
• are unable to communicate and cooperate with one another • have been in conflict with one another, the respondent having been convicted of breaching a violence restraining order and assaulting the applicant it would not be appropriate to make a joint residence order.
12 His Honour went on in paragraph 13 to say that he had no cause for concern
about the mother’s parenting of the children but, on the other hand, having regard to the father’s past conduct towards the mother and his general antisocial behaviour in the presence of the children, he did have concerns about the father’s parenting of the children.
13 Tolcon J then considered the various matters set out in s 66 of the Family Court Act 1997. Again, it is unnecessary for me to refer to everything his Honour had to say. Of importance is his finding that the father’s proposal for an alternate week-about arrangement was not appropriate because the father’s “confrontational and aggressive conduct towards the mother is unlikely to abate”.
14 He also considered that the mother was more in tune with the needs of the
children, and he was not satisfied that the father was fully in tune with their emotional needs, as observed by his general behaviour and his conduct towards the mother, particularly at times of changeover when the children were present.
15 He further considered that there was a need for changeover to be arranged so
that the parties would have minimal contact with one another. He also found that the
children had observed domestic violence perpetrated by the father against the mother.16 He went so far as to say that if the parents continued to persist in displaying
antisocial behaviour towards one another in the presence of the children there may come a time when orders would be made denying one of the parties contact with the children.
17 Taking into account all these matters, Tolcon J concluded that the children
should continue to reside with the mother and that she should have sole responsibility for their day-to-day care, welfare and development. He went on to provide for orders for the father to have time with the children each alternate weekend from Friday afternoon until Sunday afternoon and for one-half of the school holidays, as well as telephone contact twice each week, with handovers to take place at the Fremantle police station.
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18 As I have said, these orders were made in July 2005. Less than a year later, the
father commenced further proceedings in the Court on 6 June 2006. The orders sought proposed a change of schedule for the children, so that the father would have them from after school on Thursday until commencement of school on Tuesday, as well as a continuation of the shared school holiday arrangement. The father also sought a variety of other orders.
19 In September 2006, the father amended his application to seek an order for equal
shared parental responsibility and for him to have the children from after school each Friday until before school on Tuesday, as well as half of all school holidays and a variety of other orders.
20 In May 2007, interim orders were made by consent varying parts of the orders
made after the trial in 2005. As I have indicated, those orders provided for alternate weekend contact with the father from after school on Friday until the commencement of school on Monday and for a continuation of the shared school holiday arrangement.
21 The effect of the orders was that the handovers could largely take place at
school, although there were some occasions when the handover would still need to take place at the Fremantle police station. At the time the consent orders were made in May 2007, the Court had the assistance of an Independent Children’s Lawyer, who continued to be involved in the proceedings for some time thereafter, but in more recent times has ceased to have any involvement.
22 In May 2007, at the request of the Independent Children’s Lawyer, an order was
made for the appointment of [Ms M], a clinical psychologist, as the single expert in the proceedings. Ms M subsequently provided a report to the Court in August 2007. The interviews for the preparation of this report took place in June, July and August 2007.
23 Coincidentally, it was at precisely this time that events occurred which appeared
to suggest that there may have been a change for the better in the family dynamics. These events surrounded the hospitalisation of the mother in early July 2007, related to a back injury which she had sustained at work.
24 The mother made arrangements, through the father’s lawyer, for him to look
after the children whilst she was in hospital. In her affidavit she said this about that
arrangement:[The father] offered to continue to look after the children while I was hospitalised, and I was grateful for his offer. He was friendly towards me and seemed concerned for my circumstances. He visited me several times in hospital with the children although he was breaching the VRO in my favour by doing so. In light of his cooperative and caring attitude, my attitude towards him changed while I was in hospital. I became more willing to consider changing the children’s arrangements to a shared care arrangement, as [the father] still wanted, as I believed that the relationship between us was changing for the better. While I was in hospital, [the father] paid me an amount of $1000 which covered arrears of child support owing and put him in credit.
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25 This short cessation of hostilities between the parties came to an end some time
later, when the father would not return the children to the mother, claiming that she was not fit to resume the care of the children. The mother took matters into her own hands and collected the children from school, as she was entitled to do pursuant to the terms of the orders previously made.
26 Before this occurred, however, Ms M had published her report, in which she
noted that the mother’s perception of the father as being “controlling, abusing and threatening” had undergone a shift as she had experienced him “being caring and compassionate towards her and obliging and agreeing to care for the children until she regains mobility”.
27 The single expert went on to say that the father had “welcomed the opportunity
to demonstrate to the mother that he is a caring, committed and capable parent and that he is willing to establish an amicable parenting relationship”. She did, however, recommend that the father attend an anger management course to enable him to learn to deal with difficult situations more effectively than he had in the past.
28 Ms M went on to say that her assessment indicated that both parents were:
well bonded to the children and are dedicated towards providing the children with environments in which they can develop to their full potential. Both parents have a loving relationship with the children and can adequately meet the physical, social and emotional needs. The parents acknowledge the importance of the other in the children’s lives and both expressed a desire to be able to communicate with the other in relation to their children’s lives.
29 Ms M’s first report also gave her assessment of the wishes of the children. It is
noted from her report that she first met the father for four hours on 28 June 2007, and that on the same day she saw the father with both of the children for an hour and 30 minutes. Two days later she saw the mother for three hours and 30 minutes. On 14 July 2007 she saw the father with the two children for observation at home for one hour, and she subsequently had two telephone conversations with the mother.
30 It is to be noted that at all times when the children were seen they were with the
father. They were never seen together with the mother and there was no home visit to her home. Presumably the reason for this somewhat unusual arrangement where the mother was never seen in company with the children related to the hospitalisation of the mother at around this time.
31 In any event, Ms M reported that both children had expressed a wish to spend
equal time with their parents. She found that the children had bonded closely to both parents and that equal time with each parent would give them the opportunity to maintain the close relationship they already have with each parent and enhance their psychological development.
32 Taking their views and other matters into account, the single expert
recommended that the children have equal time with each parent, as well as regular contact by telephone with the other parent, and she particularly recommended that
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both parents refrain from denigrating the other to the children, or any other person in
whose care they may be.33 Apart from recommending that the father attend anger management classes, the single expert also said:
It is recommended that the mother continue with the counselling that she commenced just prior to her hospitalisation, with a view to resolving any outstanding relationship issues and helping her to manage the back injury and its impact on her and the children. It is recommended that the children have access to counselling to determine and ameliorate any negative effects of having observed physical and verbal abuse between the parents. Finally, it is recommended that the parents attend mediation to determine how they can conduct themselves in future, having the children’s psychological and emotional wellbeing as the priority.
34 The single expert prepared a supplementary report in October 2008. For the
purposes of this report, both parents and the children had been interviewed again in that month. The single expert reported that the children were “consistent in their desire to spend equal time with both parents. They stated they did not see enough of their father and wanted to have more time with him to get to know him better”.
35 Ms M also reported that the children had “identified fairness as an issue in
spending more time with the father”. Ms M said there were no indicators that the children had been unduly influenced by either party regarding their views. She reported that both children made very positive comments to her about what they did when they were with their father. However, she also said that this did not detract in any way from their love for and attachment to their mother and their desire to continue spending time with her.
36 By the time of this report, the parents’ relationship had, once again, deteriorated and Ms M noted that:
It is evident from the return to the acrimonious relationship of the past that neither parent has been successful in developing a more objective perception of their relationship, past and present, or establishing a cooperative and businesslike attitude to their involvement with the children. They need to come to an agreement on how they interact with each other in a positive manner and stop further conflict arising between them. Their behaviour has a negative impact on the children, both in the short term and in the long term.
37 Nevertheless, Ms M concluded that given the evidence before her, and what was
in the best interests of the children, she considered that they had the capacity to cope
with a living arrangement that allowed them to have equal time with each parent.38 She noted that the mother was proposing that the father would have six days in
14 with the children, but she also noted the mother would also support the children having equal time if the children wanted this to happen. Ms M’s recommendation was again that the Court should order equal time, but she also advised that the therapy she
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had recommended in the earlier reports should be followed through, if this had not
been done to date.39 It is unnecessary for me to detail all that has occurred in the course of the long, drawn out Court proceedings. The matter has been before me in October 2008, February 2009, June 2009 and now at this trial. Over the period that the parties have been coming before me, at least up until this trial, the mother has been demonstrating, by way of open offers, a strong willingness for the father to take a more substantial role in the care of the children than he has been able to undertake in the past. It should be noted, however, that at the same time the mother has been anxious for the father to attend an anger management course, as proposed by the single expert.
40 The first time the matter came before me on 27 October 2008, the proceedings
were actually listed for trial. At the commencement of the hearing, it was made clear that the mother’s position was that she would agree to the father having six nights out of every 14 with the children, with the proceedings to be relisted after the father was halfway through an anger management course, with a view to the arrangement then moving to a precisely equal shared care arrangement, as had been recommended by the single expert.
41 Given that there was so very little between the positions of the two parties, it
seemed to me entirely possible that the matter might be able to be resolved by negotiation. I therefore stood the matter down for the parties to enter into negotiations.
42 The negotiations very quickly collapsed, and the father came back into Court to
advise that it would not be practicable for him to have six nights out of every 14, as the mother was proposing, or even fifty-fifty time, as he was proposing, because it was now his intention to work away from the city.
43 He was not sure at the time whether he would be working up north or down
south, because he did not have the job yet, but wherever the job might be, it would not
fit around the proposal the mother was making for a shared care arrangement.44 The father indicated then that his preference would be that he would have time
with the children that fitted around his working schedule which, at that time, of course, was unspecified, although he was confident that by September 2009 he would have resolved the financial difficulties which were going to see him working away from the city and he would then be in a position to have equal shared care of the children.
45 To say the very least, this information came at the time as a surprise, and it is
important for me to record that there is no indication in the report of the single expert that she was in any way aware of the father’s changed intentions. Her recommendation for a shared care arrangement clearly presupposed that both parties would continue to be living in Perth, and the mother’s proposal for six nights out of 14 with the father was based upon the same presumption.
46 It must therefore be emphasised that the fact the father did not immediately
begin spending six nights out of 14 with the children was because of his decision to
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take up work away from Perth. It had nothing to do with the mother being
uncooperative or failing to take heed of the expressed wishes of the children.47 I should also note that there was some discussion at the October 2008 hearing
about the father’s attendance at the Relationships Australia anger management program. The father informed me that he considered a 26 week program, as proposed by Relationships Australia, to be too long, and he also indicated, from his past experience, that he considered that the Relationships Australia organisation was “gender biased”.
48 He said he would prefer to go to a shorter course organised by Anglicare. It was
agreed at that hearing that inquiry would be made concerning the availability of an anger management program suitable for a fly-in fly-out worker. At the same hearing, the father indicated that his intention was to sell his home because his financial position was precarious. As it has turned out, that has not been necessary.
49 The matter came back before me for monitoring on 27 February 2009. The
father’s employment, at that time, was once again up in the air. He said that he was currently working south of Perth, but had been retrenched. He was quite unsure what his future held for him, but it certainly could involve working away on a rotation basis.
50 In those circumstances, it again seemed not practicable to determine future
living arrangements for the children when the father did not know where he was going to be working and on what basis he would be employed. It was decided that in those circumstances the best thing would be for the parties to attend a child dispute conference at the Court, with a view to seeing whether, for example, it would be possible to come to an agreement about the sharing of the children, depending upon which of the father’s work scenarios ultimately proved to be the final arrangement. Unfortunately, the child dispute conference did not resolve anything.
51 There was further discussion at the hearing on 27 February 2009 about the father
attending an anger management program. He mentioned a two day program that Anglicare apparently runs on weekends, although the father had not enrolled in that program. He once again indicated his opposition to attending a 26 week anger management program, as he advised me at the time he would not be able to look after the children as well as attending such a program. There was also the difficulty, as he mentioned in the proceedings earlier today, associated with his fly-in fly-out working status.
52 Given the failure of the parties to reach agreement, the matter was ultimately
listed for trial again. The hearing commenced yesterday and concluded today. The father did not provide any updating evidence in writing for the trial, and the mother’s updating affidavit is now somewhat out of date, in that it was filed in July 2009.
53 Both parents therefore gave oral evidence to update the Court on what has been
happening since they last provided affidavits in the proceedings. The hearing was very unsatisfactory, as neither party had a lawyer, and the cross-examinations conducted by each party were fairly ineffective, although the best each of them could do.
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54 The broad picture that emerged from the oral evidence is that the father has
continued largely to work away from the metropolitan area, mostly on a fly-in fly-out basis, with him spending the majority of his time in the north-west and shorter periods of time in Perth. Whilst from time to time there is some regularity in the arrangement, this changes from time to time depending upon the needs of his employers. Thus, at the present time, whilst the father informed me at the commencement of the trial that he had been retrenched, he has in fact been stood down on pay and will be returning to work possibly in the near future, when the need arises.
55 The father has been continuing to have time with the children, but this has
necessarily been on a somewhat haphazard basis, as there is no regularity to his working regime. Thus, for example, he was at one stage working in the north-west for four months, during which time he returned to Perth on only two occasions.
56 On one of those occasions, he was successful in making an arrangement with the
mother for him to spend not only the time to which he was entitled under the Court order, but some additional time as well. This included time when the children were attending school.
57 On the second occasion when he came to Perth, I accept that the mother was
unaware that he was coming, and hence he did not succeed in having time with the children, although he says he would have liked to have done so. Although the father appeared to be complaining that the mother had only ever allowed him the times with the children to which he was entitled under the existing orders, the evidence indicates that the father has been given additional time when the mother has been aware that he is at home and has been given some notice of his desire to have extra time with the children.
58 The father did not give the mother any credit at all for this or indeed anything
else during the course of the trial. He says that whether or not she is “nice” to him depends, for example, on whether it is a full moon or whether the mother has been smoking marijuana or has lost her supply of marijuana.
59 The father confirms by his own evidence that, if anything, the relationship between him and the mother has deteriorated since he swore his last affidavit in 2008. The picture that emerges is that he and the mother are quite incapable of having any rational discussion with each other concerning any topic at all, let alone their children. There is the added complication that at almost all times there has been in place a violence restraining order which makes it very difficult for them to even attempt to come to agreements relating to the children.
60 It is in the context of this most unfortunate background that I need to consider
the parties’ proposals. The father’s proposals at the end of the trial remained as they were at the outset, namely, he would have the children for up to 150 days a year, fitted in around his working schedule, which would include periods of a couple of months at a time if he had a long layover from work, as has occurred on some times previously.
61 The mother has made it clear that she is prepared to be flexible and not insist on
the father’s time being strictly arranged around the existing order. Given appropriate notice, she says she will allow the father extra time with the children, as she has in the
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past, when he is in Perth. She does not want that to be for very long periods, but
certainly will allow it to be during school times as well as weekends and holidays.
The law
62 As the parties were never married, the proceedings fall to be determined under
the Family Court Act 1997 (WA). In the discussion that follows, reference will nevertheless be made to cases decided under the Family Law Act 1975 (Cth). The relevant provisions of the two Acts are substantially identical, with all amendments made to the Commonwealth legislation having been mirrored in the State legislation. In order to assist understanding of the cases, I intend to refer to the section numbers of the Commonwealth legislation. The corresponding State provisions can be ascertained by reference to the annotations embedded in the Western Australian Act.
Best interests and the objects of the legislation
63 Section 60CA makes clear that I must treat the children’s best interests as the
paramount consideration. In doing so, I will be guided by the relevant objects of the legislation and the principles underlying them. The stated objects aim to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
64 These objects are more comprehensive than the previously stated object of the relevant part of the legislation. Prior to the 2006 amendments, the stated object was:
…to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
65 The first of the four “new” objects is far from novel. It echoes two of the guiding principles which were previously to be found in the legislation, namely:
(a)
children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
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(b) children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development…
66 The Full Court of the Family Court of Australia has previously considered the impact of statutory amendments dealing with the objects of the Family Law Act 1975. In B and B: Family Law Reform Act 1995 (1997) FLC 92-755 at [9.2] the Full Court said this concerning the 1995 amendments to the Act:
It is clear that many of the aims of the Reform Act are long-term, educative and normative. That is, they are directed towards changing the ethos where parents separate in the ways in which they think and act in their role as parents, in their approaches to resolving disputes about their children, in the ways in which lawyers act for the parents (and the children), in the approach by the Court in the adjudication of disputes and, more broadly, in the attitudes of society generally.
67 Notwithstanding the changes of emphasis and terminology made by the 1995 amendments, the Full Court was in no doubt about the core task of judges entrusted with responsibility for making decisions about the welfare of children. The Full Court said at [9.51] to [9.60] (my emphasis added):
In our view, the essential inquiry is clear. The best interests of the particular children in the particular circumstances of that case remain the paramount consideration. A court which is determining issues under Part VII of the type to which we have referred, starts from that essential premise and it remains the final determinant.
The legislature has also made it clear that in that process the Court is required to have regard to both the provisions contained in s 68F(2) and those contained in s 60B.
The wording of s 68F(2) makes that clear — the Court "must consider" the various matters set out in (a)-(l) of that sub-section. That sub-section sets out a list of matters which the Court is required to consider to the extent that they are relevant to the particular case. The weight which is attached to any one consideration will depend upon the circumstances of the individual case and is a discretionary exercise by the trial Judge. The list is similar to the list contained in previous legislation but with the additions previously referred to. The list is not intended to be exhaustive. That is made clear by par (1) “any other fact or circumstance that the court thinks is relevant”. This simply underlines the circumstance that the facts in individual cases may vary almost infinitely, that the inquiry is a positive one tailored to the best interests of the particular children and not children in general, and that the Court is required to take into account all factors which it perceives to be of importance in determining that issue.
Section 60B is important in this exercise as it represents a deliberate statement by the legislature of the object and principles which the
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Court is to apply in proceedings under Part VII. The section is subject to s 65E. Nor does it purport to define or limit the full scope of what is ordinarily encompassed by the concept of best interests. The object contained in sub-section (1) can be regarded as an optimum outcome but is unlikely to be of great value in the adjudication of individual cases. The principles contained in sub-section (2) are more specific but not exhaustive and their importance will vary from case to case. They provide guidance to the Court’s consideration of the matters in s 68F(2) and to the overall requirement of s 65E. The matters in s 68F(2) are to be considered in the context of the matters in s 60B which are relevant in that case. But s 65E defines the essential issue.
Ultimately it is a question of applying in a commonsense way the individual sections so as to achieve the best interests of the children in the particular case. Although the Attorney-General submitted that the inter-relationship between the three sections was as much about procedure as it was about substantive law, we think it would be a mistake for this essential exercise to be clouded by procedural or semantic issues.
The Court now, as previously, is required to determine what is in the best interests of the particular children (s 65E). It will direct attention to both of the other sections, but the weight to be attached to individual components of those sections may vary significantly from case to case.
This approach, which emphasises the essential importance of the exercise of the discretion in each case, accords with the approach otherwise adopted by courts to the discretionary provisions in the Family Law Act see for example the decision of the High Court in Mallett v Mallet … (1984) 156 CLR 605, and ZP v PS … (1994) 181 CLR 630. For many years in child related cases the legislature and the courts have consistently emphasised that the welfare or best interests of the particular child in the particular circumstances of that case is the determinant, and have eschewed the application of fixed or general rules as the solution. That continues to be the case; the Reform Act should not be understood as suggesting otherwise.
As a matter of proper practice and to ensure that this essential task is performed, a judge in the adjudication of such a case would be expected in the judgment to clearly identify s 65E as the paramount consideration, and then identify and go through each of the paragraphs in s 68F(2) which appear to be relevant and discuss their significance and weight, and perform the same task in relation to the matters in s 60B which appear relevant or which may guide that exercise. The trial Judge will then evaluate all the relevant issues in order to reach a conclusion which is in that child’s best interests.
In this approach no question of a presumption or onus arises… The Act contemplates individual justice. Any question of presumption or onus has the potential to impair the inquiry as to what is in the best interests of the particular children. It may render the case more
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technical and adversarial, and may divert the inquiry from the facts relating to the children’s best interests to legal issues relating to burdens of proof. The task is not ‘to be undertaken with a mind-set that defaults in favour of a pre-ordained outcome absent persuasion to the contrary’…
In cases where there are no countervailing factors the s 60B principles may be decisive, not only because they are contained in s 60B but because they accord with what is in the best interests of the particular children. Where there are no countervailing factors, the Court may normally be expected to conclude that it is in the best interests of the children to have as much contact with each parent as is practicable. However, to attempt to impose that approach in cases where the best interests of the children may not indicate that conclusion as appropriate is contrary to the legislation and contrary to the long established views of this and other courts which deal daily with the welfare or best interests of children.
68 It will be noted that the Full Court made many references to s 65E, which was
the provision making the best interests of the child the paramount consideration. Section 65E has been repealed, but only for the purpose of advancing it to a position of earlier prominence in the Act. In my view, many of the remarks made by the Full Court in relation to the 1995 amendments hold true in relation to the 2006 amendments. In particular, it remains the case that the paramountcy provision defines the essential issue and the legislation still contemplates individual justice.
Parental responsibility and the outcomes the Court must consider
69 In enacting the 2006 amendments, Parliament has given legislative voice to what
was already a presumption that responsibility for making decisions about children should ideally be exercised jointly by their parents. The presumption in favour of equal shared parental responsibility does not apply if there are reasonable grounds to believe that either parent, or a person who lives with either parent, has engaged in child abuse or family violence (as defined by the Act). The presumption may also be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility.
70 In cases where the Court decides not to order equal shared parental responsibility, the legislation is silent about the outcomes the Court should contemplate in making the decision most likely to promote the best interests of the child. The High Court has said that in such cases the Court is “obliged to give careful consideration to the proposed arrangements of the parties”, but it is not bound by them: U v U (2002) 211 CLR 238 at [80]. In undertaking that “careful consideration”, the Court is directed by the statute to take into account a catalogue of potentially relevant matters, which will be discussed later in these reasons.
71 If, on the other hand, the Court does propose to order equal shared parental responsibility, the Act requires the Court not only to have regard to the catalogue of potentially relevant matters, but also directs the Court to consider two specific outcomes.
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71 First, by operation of s 65DAA(1), the Court is required to consider whether or
not the child spending equal time with each parent would be in the child’s best interests and reasonably practicable. If such an outcome is found to be in the child’s best interests and reasonably practicable, the Court is then required to consider making an order to provide for the child to spend equal time with each parent.
71 Second, by operation of s 65DAA(2), if the Court decides that an “equal time”
order would not be in the child’s best interests or would not be reasonably practicable, the Court must consider whether or not the child spending “substantial and significant time” with each parent would be in the child’s best interests and reasonably practicable. If such an outcome is found to be in the child’s best interests and reasonably practicable, the Court must then consider making an order for the child to spend “substantial and significant time” with each parent. (The expression “substantial and significant time” is defined by s 65DAA(3).)
The primary and additional considerations
72 As will be apparent from the discussion above, my overriding objective must be
to make the orders most likely to promote the children’s best interests. The legislation itself specifies those matters that I must take into account in determining the orders to make. These are divided into “primary considerations” and “additional considerations”.
73 This dichotomy between “primary” and “additional” considerations was
introduced by the 2006 amendments. There is now some judicial guidance concerning the way in which respect is to be paid to Parliament’s intention in specifying two factors as being the “primary” considerations. The Full Court (Warnick and Thackray JJ, with whom Le Poer Trench J agreed) said this in Marsden & Winch (No. 3) [2007] FamCA 1364 at [77]:
The present case is not an appropriate vehicle in which to undertake a detailed analysis of the implications of the legislation prescribing certain matters as “primary” considerations. It is sufficient to say it is palpably clear that whilst the “primary” considerations should be accorded particular importance in determining what order will best promote the interests of the child, they cannot determine the outcome in every case. Not only must the “additional” considerations be taken into account, but the two “primary” considerations themselves may tend in different directions. That is to say, whilst there may be great benefit attached to a particular child having a meaningful relationship with both parents, that benefit may be outweighed by the need to protect that particular child from physical or psychological harm associated with maintaining such a relationship.
74 See also Champness & Hanson (2009) FLC 93-407 at [101] to [103] and
Mulvany & Lane (2009) FLC 93-404 (per May and Thackray JJ) at [84].
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Parental responsibility
75 It will be seen from the above examination of the law that the complex statutory
pathway I am required to follow differs, depending upon whether or not I order equal
shared parental responsibility.76 The orders made by the Honourable Justice Tolcon do not actually make any
provision for parental responsibility, save for matters relating to the day-to-day care of the children. The mother had sought an order before Tolcon J for shared parental responsibility, and the father had sought no order.
77 In my view, it is essential that there be a resolution of the issue about which of
these parents should have parental responsibility. I mentioned to the parties yesterday that there is a presumption in favour of equal shared parental responsibility. That presumption does not apply if there are reasonable grounds to believe that a parent of a child has engaged in abuse of the child, or family violence.
78 I am quite satisfied, as Tolcon J also found, that the father has engaged in family
violence within the meaning of the Act, and therefore the presumption does not apply. The fact that the presumption does not apply does not mean to say that it might not be in the best interests of the children for the parents to have equal shared parental responsibility.
79 In this case, however, it is abundantly clear that equal shared parental
responsibility is not an option. The parents have shown no capacity to come to any agreements at all in relation to significant matters concerning the children, and an order which would require them to consult and to come to agreements about such matters would be bound to fail.
80 The parent who is going to primarily have the children in his or her care should
therefore, in my view, be the parent who makes the major long term decisions concerning the children. For reasons that I will shortly indicate, it is my intention that the children will continue to live primarily with the mother, and it is therefore appropriate that she make the decisions.
81 I am also satisfied, as was Tolcon J, that the mother is more in tune with the
children’s needs and is better equipped than the father to make decisions for the
children’s long term welfare.82 Had I been asked, I would have made an order for the mother to have sole
parental responsibility for all major long term issues concerning the children. However, as the mother restricts her application to matters concerning health, education and speech therapy for Jack, my orders will be similarly restricted. Effectively these are likely to be the major sticking points in any longer term issues relating to the children in the future.
Time sharing
83 As I do not propose to make an order for equal shared parental responsibility, it
is unnecessary for me to follow the statutory pathway requiring me to consider an
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order for equal shared time or an order for substantial and significant time with the
children.84 What I am required to do is to consider both parties’ proposals and determine
which of them is more likely to promote the children’s best interests, but bearing in mind that I am not bound by the parties’ proposals and can order some different kind of arrangement, provided that procedural fairness has been afforded to the parties.
85 In coming to my decision, I am required to take into account the primary and
additional considerations set out in s 66C of the Family Court Act. In dealing with the first of the primary considerations in s 66C(2)(a), I accept that it is in the interests of these children to have a meaningful relationship with both parents.
86 Notwithstanding that the children have had much more time in the care of their
mother than in the care of their father, they have nevertheless been able to continue to have a meaningful relationship with their father, and I am satisfied that they will be likely to continue to have such a relationship, even if he spends similar amounts of time with them as he has done in the period since he commenced working away from Perth.
87 Section 66C(2)(b) requires me to consider the need to protect the children from
physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. This is a matter of considerable concern to me, as it is apparent from the evidence that the children have in the past been exposed to violence and abuse, and continue to be exposed to abuse and what might be described as low level violence between their parents.
88 Both parents appear to bear some of the blame for this, especially when I have
regard to what the children said to the single expert. However, notwithstanding what might appear from consideration of the expert’s report, I have no doubt that the primary instigator of the conflict between the parents is the father, whose remarkable level of belligerence towards the mother has been demonstrated at all times during this hearing, and I might say, during previous hearings, both by what he has said and by his body language.
89 His arrogance in his dealings with the mother is quite striking, and it is not
surprising to me that from time to time the mother and her partner respond in kind. That said, it is important, wherever possible, for the children to be shielded from this, and the mother as well as the father should pay heed to what the single expert has had to say on this topic and about the damage it does to the children.
90 I now turn to s 66C(3), which details all of what are called the additional
considerations which I am required to take into account. One very significant matter in this list of factors is subparagraph (a), which concerns any views expressed by the children that may be relevant.
91 The evidence of the single expert is unchallenged. The children have expressed
to her a desire to spend more time with their father than they have in the past, and in fact a desire to spend equal time. Having had the opportunity to observe the father over a number of hearings in which he has been unrepresented, and now an
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opportunity in which to hear from the mother directly for the first time, I have no doubt, notwithstanding what the single expert said, that the children have been subjected to considerable influence by their father about the amount of time they should spend with him.
92 On the other hand, I am satisfied that they have not been subjected to anywhere
near the degree of influence from their mother. It is also apparent from considering Ms M’s second report that at least one important element of the children’s expression of wishes in favour of shared time is that they see the arrangement as being “fair”.
93 This is not an uncommon position for children to adopt, but my obligation under
the legislation is to make the order that is in the best interests of the children, not an order which children consider to be fair. It is important to make the distinction because the fairness involved is usually seen from the perspective of the parent, rather than the child.
94 It is also apparent that a big part of the children’s expression of wishes relates to
the fun times they have with the father, compared to the time they spend with the mother. The father himself describes weekends and holidays full of fun and activities. This is terrific for the children, but it has to be borne in mind that the weekdays they predominantly spend with their mother are inevitably going to be dull and boring in comparison.
95 That said, I have the impression that the father does probably have more drive
and energy than the mother in this area and would be able to arrange more stimulating activities for them than the mother. Although I have considered carefully the views expressed by the children, I do not intend to give them substantial weight because of the degree of influence to which they have been subjected and because in any event I do not consider that a shared care arrangement is either practicable or in their best interests.
96 The next matter to be considered is s 66C(3)(b), which relates to the relationship
of the children with each of the parents and other people. I am satisfied the children have very good relationships with both of their parents. It is difficult, on the basis of the evidence provided, to assess the nature of the children’s relationships with the mother’s partner, [Mr V], who was not required for cross-examination, but there is nothing in the evidence to satisfy me that they have anything other than a satisfactory relationship with him and his son who lives in the home with them. In making this finding, I have not overlooked the minor matters about which the children grumbled to the single expert.
97 In dealing with s 66C(3)(c), I have very serious doubts about the father’s
willingness and ability to encourage a close and continuing relationship between the children and their mother. His evidence and body language towards her during the course of this hearing and in previous hearings indicates that he holds her in complete contempt.
98 While the mother does not have a favourable attitude to the father, she appeared
far more capable than him of keeping her views to herself. I have nevertheless read what the children have said to the single expert regarding their concerns about the way
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the mother speaks about the father, and I have mentioned already that the mother
needs to be mindful of the concerns expressed by the single expert about this.99 Whilst it is desirable that parents do not paint a negative picture of the other
parent, I accept that certain behaviours by some parents must make it exceedingly
difficult for the other parent to restrain themselves from making adverse remarks.100 As to subparagraph (d), I consider the children would probably cope
satisfactorily with spending longer periods of time away from their mother, since they do have a good relationship with their father. I also accept that if the children were to spend more time with the father that they would have a greater opportunity than they do at present to spend time with their father’s family.
101 I do not consider subparagraph (e) to be of any real significance.
102 As to subparagraph (f), I am satisfied that both parents have the capacity to
provide for the children’s physical and intellectual needs. I am not convinced of the father’s capacity to provide for the children’s emotional needs. I found his evidence yesterday concerning him sending the children home in a taxi after they refused to reveal their plans for the holiday to [the Eastern states] to be indicative of his inability to see the impact of his own behaviour on the emotional wellbeing of his children. I found it significant that the father seemed to show no remorse or concern whatsoever for his behaviour, and instead sought to defend it. It seems to me that this kind of “rough love”, as the father might see it, would form part of his normal style of parenting, which is borne out to some extent by his description today of how Jack ended up with a blood nose when the father was trying to demonstrate to him, on his version of the evidence, how he wanted Jack to do push ups.
103 On the other hand, I found the mother’s evidence, which I accepted, concerning
her refusal to engage the children in discussion about the proceedings and about their wishes concerning their place of residence to be good illustrations of her more sensitive understanding of the emotional needs of the children.
104 I do not consider subparagraph (g) to be of any great significance, save to note
that the children are rapidly maturing, and this has been taken into account in
considering their wishes.105 Subparagraph (h) is not relevant.
106 As to subparagraph (i), I am satisfied that the father’s violence and abusive
conduct towards the mother in the past has demonstrated a poor attitude to the
responsibilities of parenthood.107 I am also far from convinced that the father has made an appropriate
contribution to the maintenance of the children. As to subparagraphs (j) and (k), I have already mentioned issues relating to violence, and I note that there is presently a further violence restraining order in place.
108 In the course of the present trial - - -
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THE FATHER: Oh look, I can’t --- I can’t deal with this mate. This is just over.
THACKRAY CJ: Just leave quietly.
THE FATHER: I’ve got to go. You just had to take and rip the backbone out of me.
109 THACKRAY CJ: In the course of the present trial and in previous appearances before the Court, the father, in my view, has minimised the extent of his violence towards the mother and shown little or no remorse for his bad behaviour, preferring to blame her for his poor conduct.
110 As to subparagraph (l), it is desirable to make an order that would not lead to any
further proceedings. I am quite convinced that an order as vague as that proposed by the father would be more likely to lead to further proceedings than the more precise form of orders proposed by the mother.
111 Turning now to s 66C(4), I consider that the matters referred to in this section have been adequately dealt with in assessing the factors under ss 66C(2) and (3).
112 In the course of giving these reasons, I have not mentioned all of the father’s
various complaints about the mother made during the course of this trial and at previous Court appearances. I do not mean to suggest, by any means, that the mother is without any fault, but overall I found the father’s complaints to be shown by his own evidence and by the evidence given by the mother to be grossly exaggerated. He persistently sought to paint a picture of her as an uncaring and negligent mother, whereas the evidence generally suggests the contrary. In this regard, I should say that where there was a dispute on the evidence, I generally accepted that given by the mother.
113 The children are progressing well in the mother’s primary care, and on the
evidence available to me it appears likely that they will continue to do so in the future, although I fear that there will be problems in the future arising out of the extent to which the children have been exposed to violence and conflict.
114 The mother presented as calm, sensible and rational in all of the evidence she
gave in relation to matters concerning the children, and I am satisfied that she will
continue to provide a more than adequate standard of care for them in the future.115 Turning now to the mother’s Minute. The arrangements which she proposes
would seem to me to be the appropriate arrangements for the children in the event that the father was living in the Perth metropolitan area and was able to take up time regularly with the children.
116 The real question is whether or not it is appropriate that such an arrangement
continue to be left in place where the father is spending significant amounts of time working away from the Perth metropolitan area. In many respects it is not unreasonable for the father to hope to be able to see the children more often when he is on a rotation in Perth, if he has not been able to spend any time with them over an extended period whilst he has been away from Perth.
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117 The difficulty associated with giving effect to this sentiment is that it is very
difficult to craft an order which is not likely to lead to disputation, particularly given the incapacity of the parents to communicate. In my view, with one important exception, it is unnecessary to change the current orders. This is not because I consider it would be appropriate for the father to be limited to having time with the children when he is Perth strictly in accordance with the existing order, but because the mother has not insisted on strict compliance with the order and has shown a preparedness to allow the father to have additional times with the children when he is in Perth and when he has given her reasonable notice of his desire to have additional time.
118 In deciding to leave the current orders in place, I am trusting the mother to
consider on their merits each request by the father for him to spend some additional time with the children when he is in Perth. This will, however, require him giving her adequate notice of when he is going to be in Perth. It is not good enough to try to pass messages backwards and forwards between the children. This makes them “the meat in the sandwich” and it is likely to lead to messages not being passed on. Nor is it appropriate that the father be permitted to speak with the mother directly in relation to these matters, as his conduct during the course of these proceedings indicates that he is incapable of doing so in an appropriate fashion. Nor would the school want to get involved, as the father seemed to be proposing.
119 In my view, as I have discussed with the parties, the best means by which the
father can give notice of when he will be in Perth and when he would like to have the children would be by way of email. The mother will need to set up an email account to which the father can write setting out his proposals, and the mother can then respond, indicating whether or not she is prepared to agree to the proposals, and if not, what times she would propose the father have the children.
120 I wish to make clear, although the father has now left the room and hopefully
will later read these remarks in writing, that in allowing the father to communicate with the mother in this fashion, that the communications are not to be used in order to abuse the mother, or to complain to the mother about any decision she might make about the father’s time with the children, but rather are to be restricted entirely to advice as to when he will be in Perth and the times he would like to have the children.
121 Before setting out the orders that I propose to make, which are largely on the lines proposed by the mother, I will mention some of the specific orders that the father proposed.
122 Paragraph 1 of his proposed orders related to his desire to travel overseas with
the children. At the present time, he does not have any specific plans to travel overseas with the children. He is in arrears with his child support, although not to any great extent. The mother is opposed to the proposal because she is not sure if the father will in fact return the children. In my view, until such time as the father has some concrete proposal to take the children overseas, I do not see it as appropriate to allow him to do so.
123 If the father has surplus funds available in order to meet the costs of overseas
travel, then in my view those funds would probably be more appropriately provided to
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the children to meet their day-to-day needs, rather than being spent on travel. That said, I am quite prepared to hear any application, or another judicial officer can hear any application, relating to the father’s travel, which may involve there being some security provided, as although I would be fairly confident that he would return, there remains at least the possibility that he might not.
124 The second order sought by the father was effectively to allow him to be the
babysitter of the children in the event that the mother was unavailable for any period of more than two hours. There is no evidence that the mother has routinely left the children with anybody other than her partner, and when she did so for an extended period, it was in circumstances of emergency when she had to travel to the Eastern states at the time that her mother was dying.
125 I am quite satisfied that the mother would make satisfactory babysitting
arrangements for the children and that ordinarily it would not be anything for much longer than a few hours because the mother’s work is arranged around the children’s hours and there is no evidence that she routinely leaves the children with others. I therefore do not propose to make the order in paragraph 2.
126 As for paragraph 3, it is my intention that the telephone contact will continue
twice each week in accordance with the existing order. I am not satisfied that it is
appropriate to further extend the order in the way the father proposes in paragraph 3.127 Paragraph 4 is directed to input into various activities. In my view, decisions
relating to the children’s after school activities and involvement in sports and study programs referred to in this order should be made by the mother, which is not to say that the father cannot make his own arrangements during those times that the children are with him. I might observe that, when giving his evidence, the father seemed to have no appreciation of how inappropriate it has been for him to regularly make decisions about activities in which the children will be involved on weekends without first having consulted the mother and without any regard to her views.
128 In relation to paragraph 5, I have already indicated that I consider the orders
sought by the mother are appropriate. I must stress, however, that I consider that anything along the lines proposed by the father would be a quite impracticable arrangement given the hostility between the parents and their inability to make arrangements, even around a fixed regime, let alone around an entirely flexible regime of the sort that he has proposed.
129 As to paragraph 6 of the father’s orders sought, it is somewhat unclear to me in
what circumstances this order would be intended to operate, but to the extent that it concerns travel arrangements that might be necessary, perhaps of the sort that occurred when the father had the children in Broome, I am satisfied that the mother would make appropriate arrangements without there being an order.
130 I am not satisfied there is any necessity for an order in terms of paragraph 7. As
to paragraph 8, I am satisfied these are matters that the mother should organise. As to paragraph 9, I consider that any time that the children spend with their extended family on their father’s side can be accommodated during the times that the father has the children, and it is unnecessary for there to be any further orders in this regard.
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131 I have already commented in relation to paragraph 10, in saying that I think it is
appropriate now that there be exchange of information by email between the parents,
rather than any other means.132 I therefore make the following orders:
1.
The respondent have sole parental responsibility for major long term issues relating to:
(a) the health and choice of doctor of the children, JACK , born December 1997 and HELEN, born May 2000; (b) the children’s education; (c) the child Jack’s speech and language therapy requirements. 2. The applicant and the respondent shall have equal shared parental responsibility in relation to other major long term issues.
3. The applications of the applicant and the respondent for variation of the existing contact orders are dismissed.
4. The respondent be at liberty to telephone the children on Tuesday and Thursday evenings at 7.00 pm when the children are with the applicant.
5. Within seven (7) days the respondent shall set up a hotmail or similar email address to be used for communication between her and the applicant.
6. Upon setting up the account, the respondent shall inform the applicant in writing of the email account address.
7. Within seven (7) days of the respondent informing the applicant of her new email account the applicant shall inform the respondent in writing of the email address at which he wishes to be contacted by the respondent.
8. The email address of both parties is to be used for the applicant to inform the respondent of the times between which he will be in Perth and the times between which he would wish to have time with the children, and for the respondent to advise the applicant of the times during which he may exercise contact with the children.
9. The respondent shall give favourable consideration to the applicant having additional times with the children outside the terms of the existing orders in the event that the applicant has been working away from the metropolitan area and has been unable to spend time with the children pursuant to the terms of the order.
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10. The applicant shall complete an anger management course approved by Anglicare, Relationships Australia or Centrecare prior to commencing any further proceedings before the Court and shall at the time of filing any further application provide a certificate from one or other or those organisations confirming his completion of an anger management course.
11. The respondent shall enrol in and attend an Anglicare Mums & Dads Forever program as soon as practicable.
12. The respondent shall as soon as practicable make arrangements for the children to be assessed by Anglicare for their suitability for inclusion in the Supporting Children After Separation Program and shall ensure the children attend such counselling as may be recommended by Anglicare as part of the program.
13. Both parties shall comply with any requirement of Anglicare in relation to their own participation in the Supporting Children After Separation Program or any other program conducted by Anglicare or other agencies recommended by Anglicare.
14. Both parties have liberty to apply to the Court to release them from their obligation to attend any program recommended by Anglicare which they consider they ought not to be required to attend.
15. Both parties have liberty to provide Anglicare with a copy of the corrected Reasons for Decision and these orders (as well as copies of the previous orders for contact).
16. This is an order to which Section 175 of the Family Court Act 1997 applies, and to the extent that paragraph 8 of these orders is inconsistent with the Family Violence Order made in the case between the parties in the Magistrates Court at Fremantle, the aforesaid order shall prevail and the Family Violence Order is invalid to the extent of that inconsistency only.
17. The Principal Registrar shall cause a sealed copy of this order to be forwarded to the Commissioner of Police, the Deputy Registrar, Magistrates Court at Fremantle, and the Chief Executive Officer of the Department for Child Protection.
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I certify that the preceding [132] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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