PATRONI and PATRONI
[2020] FCWA 204
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: PATRONI and PATRONI [2020] FCWA 204
CORAM: DUNCANSON J
HEARD: 2, 3, 4 and 7 SEPTEMBER 2020
DELIVERED : 4 DECEMBER 2020
FILE NO/S: PTW 1837 of 2015
BETWEEN: MS PATRONI
Applicant
AND
MR PATRONI
Respondent
Catchwords:
CHILDREN - Child's views - Where the older of two children refuses to spend time with the father - Where family therapy has taken place - Where it is in the best interests of the children that the mother has parental responsibility for them, that they live with her and spend time with the father in accordance with their wishes
Legislation:
Family Law Act 1975 (Cth) s 4AB(1), s 60B, s 60CA, s 60CC, s 61DA
Category: Reportable
Representation:
Counsel:
| Applicant | : | Ms D Taylor |
| Respondent | : | Self-Represented Litigant |
Solicitors:
| Applicant | : | Thomas Gatter |
| Respondent | : | Self-Represented Litigant |
Case(s) referred to in decision(s):
Nil
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 Patroni and Patroni has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
1[Mr Patroni], the father and [Ms Patroni], the mother are unable to agree about various parenting matters in respect of their children, [Child A] aged 14 years and [Child B] aged 11 years.
2The children live with the mother and the parties agree they should continue doing so at this time. The father wants the children to spend time with him on a fortnightly basis, three nights in one week and two nights in the intervening week. Ultimately he wants them to live with the parties in a week about arrangement. The mother proposes that Child B spends time with the father each alternate Sunday or otherwise in accordance with her wishes. She proposes that Child A spends time with the father in accordance with his wishes.
3The issues for determination and matters arising in these proceedings include the following:
•parental responsibility and whether the mother should have sole parental responsibility for some or all of the long-term issues as sought by her, or whether the parties should have equal shared parental responsibility as sought by the father;
•whether there should be an order for the parties to communicate in relation to decisions about long-term issues as sought by the father, or whether the parties should not be obliged to communicate, as sought by the mother;
•whether the children should spend time with the father in accordance with their wishes as sought by the mother, or whether they should spend time with the father each fortnight leading to a week about arrangement, together with time during the school holidays, as sought by the father;
•consideration of the children's views as to the time they spend with their parents and the weight to be placed upon those views;
•whether there should be specific orders in relation to school holidays as sought by the father;
•whether the children should have daily telephone communication with the father as sought by him; and
•consideration of the father's ability to meet the children's needs including their emotional, medical and educational needs.
Agreed matters
4At the commencement of the trial the parties agreed various orders, including that the children live with the mother and they continue to be home schooled by her. The parties agreed that they will communicate with each other concerning the children by email. I made orders by consent reflecting that agreement.
The evidence
5The mother relied on her affidavits filed 28 July 2017 (and specifically four annexures), 30 May 2018 and 13 August 2020. She also relied on affidavits of [Mr A] filed 8 August 2017, 11 June 2018 and 14 August 2020.
6The mother relied on affidavits of [Ms B] filed 2 August 2017, [Dr D] filed 2 August 2017, [Dr C] filed 8 August 2017 and 15 June 2018, [Dr E] filed 31 July 2017, [Ms F] filed 1 August 2017 and [Ms G] filed 28 July 2017.
7Witnesses Ms B, Dr E and Ms G were not required for cross-examination by the father.
The father
8The father relied on his affidavits filed 26 May 2017, 18 September 2017, 15 June 2018 and 17 August 2020. The father also relied on affidavits of [Ms H] filed 22 June 2017, [Mr J] filed 26 May 2017, [Ms K] filed 26 May 2017 and [Ms L] filed 26 May 2017.
9Witnesses Mr J, Ms K and Ms L were not required for cross-examination by the mother.
10[Dr M], the single expert witness filed affidavits on 31 October 2016 and 18 October 2017.
11The transcript of the report by [the] Family Consultant on 30 April 2019 was admitted into evidence. The family consultant was not required for cross-examination.
12The report of the family therapist [Ms N] dated 20 October 2019 was admitted into evidence. Ms N was not required for cross-examination.
BRIEF BACKGROUND
13The father was born [in] 1964. He is 56 years of age. He is a [carpenter]. The mother was born [in] 1965. She is 54 years of age. She is a home educator.
14The parties married [in] 1989. Child A was born [in] 2006. Child B was born [in] 2009.
15The parties separated in mid-2014. They continued to live under one roof until August 2015 when the mother and the children left the home.
16The parties were divorced [in early] 2016.
SHORT RELEVANT HISTORY
17After the birth of the children the mother was their primary carer. The father worked full-time.
18In 2011 Child A was resistant to attending kindergarten and in July 2011 he was removed from school and home schooled for the remainder of that year.
19In December 2011 Child A was assessed by [Assessment Agency A] and found to be in the "exceptionally gifted" category.
20In February 2012 Child A commenced pre-primary at [School A]. In July 2012 he was removed from school and continued pre-primary as home education.
21The parties applied to the Education Department to home school Child A and in February 2013 received certification to home educate him.
22In February 2014 the parties received certification to home educate Child B. Also in February 2014, Child B was assessed by Assessment Agency A and found to be in the "highly gifted" category.
23The parties separated under one roof in July 2014.
24The parties attended counselling. They were unable to reach agreement about the sale of the former matrimonial home.
25The mother commenced these proceedings when she filed an application for property orders on 9 April 2015. On 1 July 2015 the father filed a response seeking property and parenting orders.
26Final property orders were pronounced on 1 October 2015. On 5 October 2015 interim parenting orders provided for the children to spend time with the father every alternate week from 4.00 pm Friday to 4.00 pm Sunday and each intervening week from 4.00 pm Wednesday to 9.00 am Friday and time on special occasions.
27On 21 July 2016, Dr M was appointed single expert witness.
28On 26 October 2016, Dr M published her first report. She expressed concern about Child A's soiling and chewing behaviours and Child B's fear of sleeping in her own room at the father's house. Dr M recommended that the children be monitored and assessed by a clinical psychologist and the parties each attend upon a clinical psychologist.
29The mother reported concerns about the father and the children to the Department for Child Protection.
30In December 2016 the mother commenced seeing Dr C, Clinical and Counselling Psychologist and the children commenced seeing Mr A, Psychologist.
31On 16 December 2016 the father filed a contravention application following the mother's suspension of the children's time with him. On 31 January 2017 it was ordered that the children spend time with the father every Sunday from 10.00 am to 4.00 pm. This commenced in February 2017.
32The father attended upon Ms H, Clinical Psychologist in March 2017.
33The proceedings were listed for trial on 30 October 2017. On that date various interim orders were made by consent including an order that the children spend time with the father each Sunday from 10.00 am to 5.00 pm and each intervening weekend from 5.00 pm Saturday to 5.00 pm Sunday. The trial was vacated and the proceedings adjourned for monitoring.
34The proceedings were again listed for trial on 26 April 2019.
35The parties and the children attended a Child Inclusive Conference with [the] Family Consultant on 29 April 2019. On 30 April 2019, interim orders were made by consent providing that the mother have sole parental responsibility for educational and medical decisions. The interim spend time orders remained in effect. It was ordered that the parties attend reportable family therapy, to be nominated by the single expert witness. The mother was to continue seeing Dr C and the children to continue seeing Mr A.
36Between May and September 2019 family therapy sessions occurred with Ms N who provided a report dated 20 October 2019.
EVENTS SINCE DECEMBER 2019
37The mother deposed that in December 2019 the children told her they wished to see the father every alternate weekend and not every weekend and did not wish to go to his home on Christmas Day. They visited him on 22 December 2019.
38The children visited the father on 28 December 2019. The father gave them each a gift of $200 for Christmas. The mother deposed that after a visit on 5 January 2020 the children told her they wanted to pool their Christmas money to save for a holiday and asked her to hold it for safekeeping. The children visited the father on 11 and 12 January 2020. The mother deposed Child A told her the father had yelled at them about their decision regarding the money. She deposed both children refused to visit the father the following weekend. On 15 January 2020, Child B sent a text message to the father informing him that she was not coming to visit him that week, but would tell him when she was. The father replied with a text message that read "Sorry but that is not acceptable. Tell Mum I will be preparing court complaint documents if you don't come". Child A wrote to the father and delivered a letter to him on 16 January 2020, the terms of which are as follows:
Father
I'm not coming to your house again because you are rude, mean, sexist, unfair, and annoying.
I just don't like how you treat us; I hate your jokes; how you don't even interact with us; how you put no thought into Christmas; and I think the pocket money thing is unfair. It is not fair to tell me that I can't spend it on having fun, which is impossible to have at your house. I would understand if it were anything illegal, but why don't you want me to spend it on having fun? Also, yes father I do like salad, I just don't eat it because you don't serve it, and I hate your soggy steamed vegetables.
You don't interact with me, and I once asked if we could see a movie, and you said we wouldn't have time, but we had more than five hours. I believe I should be able to do what I want to do with my pocket money. I am not wasteful, and I am wise with what I want to do with my money. Some of it I want to save for something special.
Again, I'm not coming back.
Signed
[Child A]
39The father replied to Child A by email dated 19 January 2020, telling him that he loved him and that he was welcome to his house whenever he liked. The father wrote he hoped Child A would change his mind and visit him and that he felt sad that Child A did not want to do so. The father apologised, and said he did not intend to be rude, mean, sexist, unfair and annoying. He offered to talk to Child A about this. The father admitted his jokes are a bit lame and he apologised for the "Christmas money thing". He thought Child A may have misunderstood what he meant. The father apologised for the way he cooked vegetables and explained why he did not take the children to the movies on the occasion to which Child A referred. The father ended his email with "lots of love, Dad".
40The father deposed he gave the children money for Christmas and they discussed going shopping to buy the things they wanted. He deposed the children did not mention anything about saving for a holiday and they often took their pocket money to their mother's house to pay for things like trips to the movies or their [other interests]. After Christmas, when the children visited the father he suggested they go shopping to spend their money. The children told him they had taken all their money to their mother's house. Child B said she had lost hers. The father deposed he was annoyed as he thought the mother was "manipulating the children into giving her their pocket money" although he did not express this to the children.
41The father described the Christmas money as a catalyst for the children not to come to him. He described it as an opportunity for the mother to manipulate the children and set in Child A's mind the view that he did not want to see the father. The father said he received a text from Child B and replied to the mother as set out above. He suspected the text was from the mother and so he replied appropriately. He did not think Child B would see the message. The father said he only discovered the money was an issue for the children when he received the mother's affidavit. He said on reflection he should have given them a gift voucher. He described it as having "messed up". The father suspects the mother contributed to the content of Child A's letter although he acknowledged Child A may have had some input into it. He believes mostly it was manipulation and help from the mother. The father described the content of the letter as unfair and untrue and he had no doubt the majority of it was from the mother.
42Since then Child B has continued to visit the father. Child A has not visited him and refuses to do so.
43In March 2020 the mother and the children spent time with the paternal grandmother when she visited Perth.
THE PARTIES, THE WITNESSES AND THE EVIDENCE
The mother
44The mother was a cooperative and honest witness. She gave her evidence clearly and firmly. When she disagreed with a proposition put to her by the father, she clearly stated her position.
45The mother deposed that she was initially happy in the marriage. She deposed the father threatened suicide on two occasions between 1994 and 2004, but he refused to see a marriage counsellor.
46The mother deposed to examples of the father being unsympathetic and unhelpful when she suffered ill health. She deposed he attributed any illness or pain as being a "panic attack" or dismissed her as a hypochondriac. Similarly, she said he was dismissive of the children's ailments.
47Child A became increasingly anxious about kindergarten and the mother described the father's reaction to this as uninterested and critical of what she did to address the matter. The parties jointly applied to the Education Department to home school both children and the mother has been their home educator since.
48The mother deposed the father was made redundant in mid-2014 and thereafter he became "more aggressive and authoritarian, continually dictating to me how things were going to be". The mother's position is that the father perpetrated family violence. She described him as becoming enraged, standing over her and denigrating her. This "verbal attack" took place in front of the children.
49The mother deposed that although the father did not physically assault her, he intimidated and threatened her. He threw and broke objects, made negative comments about her and showed no caring or empathy for her or the children.
50The parties disagreed about medical issues concerning the children, including Child B's [special needs].
51In August 2014 the parties attended marriage counselling. By 20 August 2014, the father conceded the marriage had broken down irretrievably and the parties lived separately under one-roof.
52The mother deposed the father said she was mentally ill and he isolated her from friends and family. He said he wanted to put the children into mainstream schooling because he was concerned about her mental health.
53The mother deposed in April 2015 the father could not find his [toy] and he threatened her saying he would throw everything out of the attic and she would have to put it back if she didn't find it. She deposed the father started throwing things out of the attic. The mother applied for a violence restraining order which was not granted.
54After the mother left the family home the children spent time with the father. The mother said the father neglected the children's medical needs. The parties disagreed about the children's medical issues and Child B, in particular became stressed and anxious and chewed his t-shirt.
55The mother deposed that she found it impossible to discuss issues concerning the children with the father cooperatively and said his attitude was to demean and belittle her.
56In December 2016 the children started seeing Mr A. The mother deposed that the children complained they had "no voice" and that the father "does not listen to them". The children became reluctant to take the father's calls and routinely complained about being bored at the father's home.
57The mother deposed the children complained there was little food to eat and that the father continued to be neglectful of their illness or injuries. The mother deposed to various complaints made by the children regarding the father and his lack of interest.
58The mother deposed that by August 2019 there was significant difficulty and stress in trying to encourage the children to spend time with the father. The children's complaints were similar to those as before, the time being boring, the father not talking to them, nothing to eat, or the father becoming angry.
59The mother said Child A is adamant he does not wish to talk to his father at this time. The mother said he had started to get angry with her when she suggested he see the father. The mother said she does not know how to move forward and is being guided by Mr A. The mother said she is in a difficult position. She tries to be positive and supportive, but does not want to push the children in a manner that is difficult or detrimental to their relationship.
60The mother said it is emotionally draining for her trying to persuade the children to see their father, but she continues to do so. She described herself as emotionally and financially exhausted by the Court process. The mother said she hoped that somehow Child A would reignite the relationship with his father, but at this stage she had no ideas.
61The mother's position at trial was that she have sole parental responsibility for the children. The mother explained that although she has corresponded with the father regarding issues concerning the children, for the most part he has not responded, commented or provided any input particularly with regard to medical and educational issues.
Dr C
62Dr C is a Clinical and Counselling Psychologist. The mother was referred to Dr C by her general practitioner and first saw her on 2 December 2016. Dr C has continued to see the mother and has seen her on seven occasions in 2020.
63Dr C provided reports dated 1 August 2017 and 28 May 2018, and she also gave oral evidence.
64In her first report Dr C said the mother presented with issues dealing with the breakdown of her marriage. The mother told her there had been domestic violence in her marriage and gave examples such as the father not allowing her to access medical help when she was severely unwell, being given an ultimatum to have sex or the marriage would end, being aggressive, gaslighting and the father putting her down in the presence of the children. The mother reported to Dr C that she was afraid of the father, who told her she was mentally ill.
65In her second report Dr C reported that the examples of family violence given by the mother had a continuing impact upon the mother in dealing with the father, namely that she experiences high anxiety and distress. Dr C reported it did not seem possible that the mother would be able to co-parent with the father and requiring her to do so would be detrimental to the mother and have a negative outcome on her mental health.
66In her oral evidence Dr C confirmed that the mother reported she was frightened of the father. She said she outlined the reasons for this in her reports, in particular that the mother cited domestic violence and gave several examples of this, however most were not physical.
67Dr C said the mother reported feeling increasingly stressful and it being a stressor for her trying to get the children to go to the father's home. She said the mother takes her obligation to do so seriously. Dr C said the mother had repeatedly said she wants the children to have a relationship with the father and she is supportive of that, but the children are unwilling, which becomes difficult for her given their age. Dr C said this was not parental alienation by the mother. Dr C said in the time she has known the mother she did not recall any occasion where the mother said she would not allow the children to see the father, she could only recall situations where the children did not wish to do so.
Dr D
68Dr D is the mother's general practitioner. He first saw her in 2001 and she has consulted him for the last 20 years.
69Dr D deposed that the mother is able to identify when the children are sick and require medical review. She has not attended his surgery for spurious reasons.
70Dr D reported that the mother presented to him as sensible and reasonable and not someone who is a hypochondriac or hysterical. He deposed she came across as a competent mother.
71Dr D reported that it is apparent to him the mother did not have an underlying mental health issue. He further reported the mother described feeling intimidated and threatened by the father leading her to feel vulnerable. She spoke to him about this after her separation.
72In his oral evidence Dr D confirmed that the mother had consulted him with stress and anxiety linked to the marital breakdown.
Ms F
73Ms F is a friend of the mother and is supportive of her. She home schools her own children. The children became friends and attended each other's birthday parties.
74Ms F noticed that when she visited the parties' home, the mother's demeanour changed and she became quiet and seemed careful of what she said. She deposed the father stood in the kitchen and stared without saying anything.
75Ms F deposed the mother told her that she was frightened of the father when he had yelled at her about a [lost toy] and thrown items out of the attic. Ms F encouraged the mother to make a safe exit plan. Ms F helped the mother move from the family home.
76Ms F noted that Child A began chewing his clothing in 2016, although in cross-examination the father pointed out that he had chewed his clothing before that.
Mr A
77Mr A is a Psychologist. He has over 40 years experience in the areas of assessment and counselling of children, adolescents and adults. He has counselled many young people whose parents have separated.
78Mr A has been counselling Child A and Child B on a regular basis since December 2016. Their last counselling session was held on 15 July 2020.
79Mr A provided two reports, dated 31 July 2017 and 28 May 2018. He also provided an affidavit sworn 14 August 2020.
80The children were referred to Mr A for psychological counselling because Child A was suffering from anxiety, including behaviour changes with his father and Child B had difficulties with dealing with and managing her parents' separation and divorce. At the time of Mr A's second report, the children wished to maintain their visits with their father, but said that at times their father was not able to take them to activities or outings which occur on the weekends they are with him. They wished to be able to change visits, but did not feel free to express opinions. Mr A reported the mother had a sound understanding of the children's development issues and was supportive of the father in their presence.
81Mr A deposed that in recent months both children had expressed the desire that they did not wish to visit their father on weekend visits. He referred to Child A sending an email to the father and said he was "very determined that he will not visit his father in the short term". Child B was too nervous to go by herself, but over recent months has felt sorry for the father and has started visiting him.
82Mr A deposed that the children have showed a preparedness to express their own point of view. Child A does not wish to see the father, who he describes as "that man" and Child B is nervous of going without Child A, but is willing to do so during the day once a fortnight, provided she can cancel if she wishes to.
83Mr A reported the children have a healthy relationship with their mother.
84Mr A provided a document from Child A headed "Reasons I don't want to go to father's house again" dated 15 January 2020, which became Exhibit 6. The change in Child A's attitude came at the Christmas break and Mr A described Exhibit 6 as his "reasonable reasons". Mr A said it is possible the children talk to their mother, but it would be a stretch to say she was influencing their point of view.
85Mr A recommended that one solution was to allow time to see how things go in the future. He has encouraged the children to visit their father, but Child A's point of view is strong and he could not be forced to go. Child B wants a choice. Mr A said time may heal things, but time doesn't necessarily heal everything.
86Mr A said having listened to the children over the last couple of years, Child A is of the view that the father does not really listen and denies the children an opportunity to express a different point of view to his.
87Mr A suggested the father send an email to Child A once a month to check in with him.
The father
88The father was a cooperative witness. He was well prepared although some matters raised by him were not of assistance. For example, he intended to challenge the mother on every aspect of her evidence with which he did not agree. Many of those matters were historical and would not impact on the issues which I had to determine.
89As discussed below I consider the father lacks some insight into the emotional needs of the children. Having said that, he is a caring parent. What emerged clearly from his evidence is his distrust of the mother, his belief that she is mentally ill and that she has alienated the children from him.
90With reference to Child A's letter the father said that he tried to cook what the children liked and he questioned whether the children understood his sense of humour, which he described as "dry".
91The father strenuously denied the mother's allegations of family violence. The father deposed that he never harmed or threatened to harm the mother in any way. He said the examples are fabricated, there was a tiny amount of truth in some of them, but others had been reversed as to perpetrator and victim.
92As to the mother's allegation that the father threw items out of the attic he said he looked in the loft for a lost toy, but it was crammed with stuff and he could not get in. On the way down the ladder, he brushed against a picture on the wall which fell and broke.
93The father denied he ever threatened suicide and that he ever called the mother a hypochondriac. He deposed the mother faints readily. He denied the mother's account of events when she suffered ill health. He deposed to assisting her and seeking medical assistance as and when appropriate.
94The father deposed the mother unilaterally made the decision to take Child A out of kindergarten. The father acknowledged that he and the mother had different approaches to parenting. He said he became concerned at how the mother handled the children during their school lessons and deposed he thought she treated Child A too harshly. He denied being critical of the mother, but acknowledged that at times he disagreed with her.
95After the parties separated, the children spent time with the father. He denied any suggestion of inappropriate behaviour with respect to wiping Child A's bottom or Child B sleeping in his bed.
96The father agreed that he and the mother are not able to compromise when they disagree on an issue, and he deposed the mother will not listen to the opinions of others if they differ from her own.
97The father deposed the children do a variety of activities with him and he listens to their suggestions, but they are not always possible to do. He deposed he keeps his house clean and food is readily available. The father acknowledged that on one occasion he was unable to take the children to an activity by reason of lack of time.
98The father's position is that the mother disregards his opinions as to the children's education or medical issues. He deposed she removed the children from school without consultation. His preference would have been that the children attend mainstream schooling. The father deposed the mother has presented no evidence that the children require special education and could not attend a normal school. All of the children's school reports are written by her. However, he has consented to an order that they continue to be home schooled as he said not to do so now would be too disruptive for them.
99The father maintained his concern that the mother has mental health problems. He referred to her "untrue claims of abuse and mistreatment of her and the children" by him. He deposed she is pretending to be a victim and her bizarre behaviour in keeping her home location secret is based on her imagination.
100The father said Child B visits happily on Sundays, she deserves a good relationship with him and her time with him should be as close to equal as possible. The father set out his current view of the mother at [23] of his affidavit filed 17 August 2020, where he deposed:
…[Ms Patroni] is deceitful and manipulative, I do not believe that she has any desire for the children to have a relationship with me. It is my belief that [Ms Patroni] is doing everything she can to alienate me from the children. The children have always seemed happy when they visit me.
101In relation to financial support of the children, the father said he pays a bill when asked, but he feels taken advantage of if told after the expense has been incurred. Child A wanted clear braces. The father paid approximately $700. He described this as the opportunity for the mother to "drip a bit of poison".
Ms H
102Ms H is a Clinical Psychologist. The father was referred to her in November 2016 by his general practitioner for the treatment and management of stress relating to the Family Court proceedings following recommendations made by Dr M. Ms H provided two reports, the first dated 19 May 2017 and the second dated 8 June 2018.
103Ms H described the father as presenting as polite, well dressed, although socially awkward. She conducted a home visit of the father with the children in May 2017. Ms H reported the father expressed love and care for the children. Ms H reported she was of the view that the father has the capacity to adequately care for and provide for the children if overnight visits were to resume. In her summary, Ms H assessed the father's non-clinical levels of anxiety and stress as an appropriate reaction to the Family Court proceedings. She was of the view that the father would benefit from ongoing psychological support. In her assessment the father did not pose an abuse risk to the children and his parenting skills were adequate for weekend care inclusive of sleepovers. She was of the opinion that the father should continue to engage in psychoeducation regarding how best to support the children's developmental, emotional and social needs, including how to improve quality time spent with the children and effective behavioural shaping strategies. She hypothesised that the mother may have unfounded anxiety regarding the father that impacts upon his capacity to have a relationship with the children.
104Ms H communicated with Dr A during the preparation of the report.
105In her second report Ms H noted that overall the father's relationship with the children had improved and upon her recommendation the father completed a Triple P parenting program.
106Ms H noted the father had moved away from "perseverating" about the mother, the Court process and the demise of the marriage, but he continued to experience intense grief in relation to missing the children.
107The father has not seen Ms H in the last 12 months and she was unaware of the outcome of the family therapy. In her oral evidence she was of the view that the father could see the world from the point of view of either of the children.
Family Consultant
108On 29 April 2019 the parties and the children attended a Child Inclusive Conference with [the] Family Consultant. The family consultant provided her report on 30 April 2019. At that time Child A was 12 years of age and Child B was 10 years of age.
109The family consultant reported that the children wanted flexibility in the time they spend with their father and that he reported he wanted the children to spend more time with him, saying this is what the children wanted.
110The father emphatically denied any family violence, on the other hand the mother alleged the father perpetrated emotional, psychological and verbal abuse to her, both during the relationship and post-separation. The mother told the family consultant that the children have told her and Mr A that the father does not listen to them and that they feel they are walking on eggshells waiting for the father to explode.
111The father expressed his concern about the mother's allegations and about her state of mind.
112Child A told the family consultant that he liked home schooling. He spoke of boredom when in the father's care and he reported to the family consultant that the father became angry with him if he wanted something the father did not. Child A described the mother as "absolutely awesome" who arranges sleepovers and friends to play. Child A wanted more flexibility in his time spent with the father.
113Child B also preferred home schooling because there were bullies at school. She described time at the father's as boring and annoying because they did not go out much. In comparison she spoke of activities with the mother and described the mother as funny. Child B proposed she would like to spend time with the father when she felt like it.
114The family consultant described a distrustful post-separation relationship between the parties and differing parenting styles.
115The family consultant reported the children are more closely aligned to the mother as compared to the father and may have been unintentionally influenced by her views. The family consultant reported it seemed the children hold all the power and there were few consequences. She described this as an inappropriate amount of power afforded to them by their parents given their developmental age.
116The family consultant expressed concern that this power to self‑determine the time the children spend with the father may lead to a steady decline in that time. She reported the children told Mr A what they wanted, he then helped them communicate this to the father. The father is however of the view that these messages were written by the mother.
117The family consultant described Child A's narrative and behaviours to be immature for his chronological age, although his language skills to be advanced. She described Child B as an outgoing child who socialises well. The family consultant reported that the father believes the children's views are those of the mother. The family consultant recommended that the parties attend family therapy and in the meantime the children continue to spend time with the father.
Ms N
118Ms N is a Clinical Psychologist. She has 15 years experience and has conducted many assessments, including with respect to children, families and couples with issues including relationship breakdown. Ms N provided a report dated 20 October 2019. The terms of her report were not challenged.
119Ms N was nominated by Dr M to undertake reportable family therapy. The family therapy commenced in May 2019 and 11 sessions were completed concluding on 3 September 2019. The attendances upon the parties and the children are described in the report.
120Ms N described the father as intelligent, articulate and well versed in many areas of knowledge, but he appeared to struggle with activities involving emotions. The mother initially presented as stressed and concerned, but her narrative regarding her marriage was detailed, fluid and comprehensive. She impressed as being highly anxious and vulnerable to the impact of memories of her relationship with the father.
121Ms N described Child A, who at that time was 13 years of age, as articulate, eloquent and interpersonally active. Child B at that time was 10 years of age, and initially presented shy and hesitant, but soon relaxed and became engaged and responsive. Child B expressed to Ms N that she was scared and Ms N was of the view that Child B was worried she might have to confront her father with concerns.
122Ms N reported that the mother's engagement in the therapeutic process was consistent and responsive. The father was also consistent, but stated he did not get anything out of the therapy and should have taken it straight to trial.
123Ms N reported that the father informed her he expressly requested a clinical psychologist because he believed the mother had mental health issues. She believed the father was hoping for some validation of this view point and he was discouraged when this did not occur.
124Ms N reported there were three main issues of contention between the parties, namely home schooling, medical concerns and recreational activities.
125Ms N reported the mother provided attuned and responsive parenting, although she appeared to defer to Child A on a few occasions. Ms N suspected that Child A might be afforded too much decision making power within the family system and she relayed this to the mother who appeared to consider the possibility.
126The father was observed to care for the children, wanting to spend time with and interact with them. He provided limits which she considered may cause some tension between him and Child A.
127The children described their mother as "awesome".
128Ms N's concern in relation to the father was based on the children's consistent and repeated statement that they are bored at his home.
129Ms N reported that both parties are "good enough parents" meaning that they have the capacity to provide for their children's basic physical, developmental, social and emotional needs. The father showed some parenting strength, but Ms N reported that where he is likely to be "tripped up" is within the context of providing emotional availability and actively listening and engaging with the children. She described these concerns as by no means insurmountable.
130As to whether the parties encourage the children's relationship with the other parent, the mother explained she promotes and supports a relationship between the children and the father. Ms N was unsure if this happens consistently because the mother also explained the children should have flexibility to choose whether to spend time with him and these two approaches are incongruent, with the mother possibly affording the children too much choice and responsibility for the outcome. Ms N's concern was that the children may choose not to see the father.
131The father stated to Ms N that he encouraged the relationship between the children and the mother and she saw nothing that would indicate otherwise.
132Ms N described both children as well adjusted children despite the high conflict between their parents. She reported that home schooling has met the children's educational requirements, although Child A might benefit from transition to a school placement for gifted children.
133Both children told Ms N they wanted flexibility in the care arrangements and in their final session said they would like a full weekend with the father on a fortnightly basis. Ms N suggested that the children spend a full weekend each fortnight with the father. She was of the opinion that the children would benefit from a larger block of time with him, with more scope for planning activities and events.
134Ms N reported:
At this point, it is my opinion that further family therapy is unlikely to yield any further, immediate changes in the family dynamics. While [Mr Patroni] and [Ms Patroni] have responded well to therapy (e.g. parenting skills and relationship with their children), the next natural step in therapy would be to try to reduce the high conflict between them. However, as mentioned, they both hold long-standing, polarised views (i.e. home schooling, medical issues, and recreational issues) and these have proved resistant to change. It is my considered conclusion (that ongoing family therapy would not be beneficial until the Family Court proceedings are finalised and the family system is able to reach some stability. When that, is achieved, further therapy could then be considered with the aim of reducing the conflict between [Mr Patroni] and [Ms Patroni].
Dr M
135Dr M is a Clinical Psychologist. She was appointed single expert witness on 22 July 2016. Dr M provided two reports, dated 26 October 2016 and 17 October 2017.
136During the course of the trial she was provided with various documents, including the parties' updating affidavits. She gave oral evidence.
137Dr M's reports were comprehensive, but by the time of trial they were mostly out of date.
138Dr M reported that the mother told her that the father bullied, intimidated and acted aggressively towards her. The father reported to Dr M that the mother was irrational and had borderline personality disorder.
139The mother reported to Dr M she genuinely feared for her safety and that of the children by reason of family violence, in particular the father's controlling behaviour, vexatious claims and denigration. The father disputed these claims.
140In her first report Dr M reported the mother to be child focused and parenting adequately. She reported the father demonstrated very little insight into the developmental milestones of the children.
141Dr M observed the children interacted well with the mother, although she did not observe the children interacting with the father. She found the father minimised the children's medical issues and at that time she reported the father appeared to be very angry with the mother.
142Dr M recommended both parties visit a clinical psychologist.
143In her second report Dr M reported that the mother remained child focused and that the father interacted freely and in a relaxed manner with the children. She found the father to be "somewhat more child-focused" however, he still lacked the appropriate developmental social and emotional needs of the children. The children reported they enjoyed their time with Mr A who had helped them during the time of high conflict between their parents.
144Dr M reported that she found that the father continued to be fixated in his belief that the mother has a mental disorder. The mother wanted the father to acknowledge his past threatening behaviour, but he stated the mother told lies.
145Although there had been an improvement in the father, Dr M reported at that time he still lacked knowledge of age appropriate, developmental, social and emotional needs of the children and his focus remained primarily on his frustrations with the mother.
146Dr M reported the mother continued to be fearful of the father.
147Dr M reported Child A was at an age where he could spend time with his father according to his wishes and that Child B would need a little more time, although in the short-term both children should go together to see the father.
148There were many aspects of Dr M's report which the father did not accept. Time did not permit him to challenge all of them. I accept however, that there were a number of aspects of the report which were not in favourable terms of the father and which he disputed.
149In her oral evidence, Dr M described this as a fractured family who remained in high conflict. She stated when she interviewed the children, they wanted to spend more time with the father and in that respect there has been a big change.
150Dr M did not agree that the children hold all the power as reported by the family consultant, although she agreed that the children still needed to be guided and regulated by their parents. Dr M said children deciding when they can spend time can be problematic, however one runs the risk of that relationship deteriorating further when a child does not feel in control of the decision making and that requires specialist therapy.
FAMILY VIOLENCE
151The meaning of family violence is set out at s 4AB(1) of the Family Law Act 1975 (Cth) ("the Act") which provides:
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to) -
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f)intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
...
152The mother alleged she was the victim of domestic violence throughout the relationship and after separation.
153The mother deposed that in 2010 the father threatened her with immediate divorce if she did not have sex with him. She complied but she said she felt coerced, degraded and demoralised. The mother alleged the father mocked and denigrated her and shouted at her. She alleged he was aggressive and authoritarian. He stood over her and denigrated her, including in the presence of the children. The mother said the father threw and broke objects and made negative comments about her appearance. She said he was belligerent and critical. The mother alleged the father belittled and demeaned her. She deposed the father smashed Child A's new toy. The mother said he threw things out of the attic and broke an item which was knocked off the wall.
154The father denied the mother's allegations of family violence. It was not suggested that he had been physically violent towards the mother. The father denied he purposely broke anything and said nothing was thrown in frustration or anger. He did not accept the mother's examples of him being controlling or coercive.
155The mother's position is that the father continues to psychologically abuse her by alleging she has a mental illness. She said she is frightened of him. The father's position is that the mother has a mental illness. He alleged she has a borderline personality disorder.
156Mr J, the mother's brother deposed in support of the father that he had only ever known the father to be kind, quiet, non‑offensive and even tempered. He has never seen the father lose his temper or be angry.
157Ms K, the mother's sister also supported the father. She was critical of the mother, and described her behaviour as manipulative. She deposed the mother would bully and run-down the father when she could.
158Ms L, the mother's sister-in-law also supported the father. She deposed she had never seen the father angry, aggressive or lose his temper. She described the mother as twisting facts to distort the truth.
159These witnesses who were supportive of the father were not required for cross-examination and their evidence is unchallenged. Dr M reported in her second report that the father had become very preoccupied with being right and aligned himself with members of the mother's family who she has not had relationships with for some time.
160The mother's allegations mostly concern events which took place in the home and consequently the only direct evidence available is that of the persons present, namely the parties. However consistent with her allegations the mother described to Dr D that she felt intimidated and threatened by the father, leading her to feel vulnerable. The mother reported family violence to Dr C. The mother reported family violence to Dr M, the family consultant and Ms N.
161Dr M referred to the mother's reports of family violence, in particular the father's controlling behaviour, vexatious claims, for example diagnosing her with borderline personality disorder, denigrating her in front of the children and using the children as a means to control. The mother reported to Dr M that she genuinely feared for her safety and that of the children.
162Dr M reported that the father was extremely focused on the mother's behaviour and personality and diagnosing her. Dr M found the father's attitude towards the mother to be disparaging and he appeared to be angry with the mother for ending the relationship. Dr M recommended that both parties attend a family violence course, her concern at that time was the mother's tendency to under report.
163In her second report, Dr M reported that the mother wanted the father to acknowledge his past threatening behaviours towards her by way of a program on family violence and the father reported to her he would not engage in such programs as he has not engaged in such behaviour.
164I am unable to make a finding about specific incidents of family violence. I accept the mother's evidence that she felt controlled and intimidated by the father. I accept that she is frightened of him. I am satisfied that the father was unsympathetic towards the mother and critical of her. During the relationship he believed she has had a mental illness and told her so. He continues to believe that and this belief continues to frighten and unnerve her.
THE LAW
165These proceedings are determined under Part VII of the Act. In reaching my decision I will be guided by the objects of that Part and the principles underlying those objects as set out in s 60B.
166The objects are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
167In deciding whether to make a particular parenting order, s 60CA directs the Court to regard the best interests of the child as the paramount consideration. Section 60CC sets out those matters which the Court must consider in determining what is in the child's best interests.
168I must consider the primary and additional considerations. Section 60CC(2) sets out the primary considerations, which are the benefit to the child of having a meaningful relationship with both of the child's parents, and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
169Section 60CC(2A) provides that in applying the above primary considerations the Court is to give greater weight to the need to protect the child from harm.
Parental responsibility
170Pursuant to s 61DA of the Act, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the child's best interests for the parents to have equal shared parental responsibility for the child.
171Equal shared parental responsibility imposes an obligation upon them to consult as to major long-term issues regarding the child and to make a genuine effort to come to a joint decision about such an issue.
172The presumption that it is in the child's best interests for the parents to have equal shared parental responsibility for the child does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse or family violence.
173The presumption may be rebutted by evidence which satisfies the Court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility.
PRIMARY CONSIDERATIONS
the benefit to the child of having a meaningful relationship with both of the child's parents
174It is to the benefit of Child A and Child B to have a meaningful relationship with both of their parents. The mother's position is that the children spending time with the father at weekends in a flexible manner is the optimum way for the children to enjoy a meaningful relationship with him.
the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence
175The father alleges the mother is mentally ill. He has consistently made this allegation which is not supported by medical evidence. The evidence of the professionals, including Dr M is that the mother provides well for the children. Upon the evidence I am satisfied she is not mentally ill as alleged by the father.
176The mother is critical of various aspects of the father's care of the children. In the past it was considered that some of his behaviour in relation to their sleeping arrangements and toileting were inappropriate. Those issues are not a concern at this time.
177The mother is concerned that the children will be exposed to family violence perpetrated by the father to her. She referred to his continuing belief that she has a mental illness and her concern that he is critical and derisive of her to the children, which causes the children to be upset and stressed. I refer to this further below when considering the father's capacity to provide for the children's needs including their emotional needs.
178I am mindful that notwithstanding her concerns, the mother proposes that the children spend time with the father and properly in the circumstances she seeks a non-denigration order.
179Ms N reported that in her view both parties are "good enough parents" and I refer to this further below.
180The children are not at risk of harm in the care of either parent.
181I do not consider there is a need to protect the children from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence in the care of either party.
ADDITIONAL CONSIDERATIONS
any view expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views
182Currently Child A does not wish to spend time with the father and will not do so. Child B spends time with the father during the day on Sundays each fortnight. Both children wish to have flexibility and some choice as to when and if they spend time with the father.
183The father does not accept that the children's views are independently stated.
184The family consultant said the children have too much power in deciding what they want to do. Ms H said giving the children the choice would be too difficult for children of this age. Dr M disagreed and was of the view that the children, particularly Child A should spend time with the father when he wanted to do so.
185The children's treating psychologist, Mr A provided the most recent and direct evidence concerning the children's views. He deposed that in recent months, both children have expressed the desire that they do not wish to visit their father on weekend visits. Child A is determined he will not do so in the short-term. Child B did not want to go by herself, but has since started to visit. Mr A said this suggests the children are maturing, they have shown a deep sense of social justice and a preparedness to express their own point of view. Mr A's evidence is consistent with Child A's correspondence as to his visits with the father and also Child B's actions, in that she is visiting him when she chooses to do so.
186The father's position is that weight should not be placed on the children's views because he believes they are being manipulated and influenced by the mother. He is firmly of the view that notwithstanding Child B's stated views she should be living with him in a more or less equal arrangement. He said he believes equal time with the children would be the best thing for them.
187Mr A's evidence was consistent with the children's views as reported by Ms N in that both children sought flexibility in the arrangements. It appears there has been a change in their view because as at September 2019, the children wished to spend a full weekend with the father on a fortnightly basis. That is no longer the case. I do not know the reason for the change although the events at Christmas could have contributed to it.
188Child A has just turned 14 years of age, Child B is 11 years of age. I place weight on the stated views of the children having regard to their ages and their confidence in expressing their views to Mr A.
the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child)
189The children have a close and loving relationship with the mother. Child A's relationship with the father is fractured at this time and there is a risk that forcing him to do something he does not want to do may deepen the rift between them. Child B has a close and loving relationship with the father. She enjoys her visits to him as is evidenced by her willingness to continue with them. Mr A described this as Child B feeling sorry for her father.
190Mr A described the relationship between Child B and the mother as a very healthy one. Ms N reported that the children described their mother as "awesome". With respect to the father, Ms N's concern was based on the children's consistently repeated statements that they were bored at the father's home.
the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child
191The mother is critical of the father's involvement in making decisions about major long-term issues in relation to the children. Interim orders were made on 30 April 2019 in terms of which the mother has sole parental responsibility for the children, but before making a decision must notify the father of it, seek his comments, take into account those comments and notify him of the decision made. The mother has provided the father with 91 emails concerning the children between May 2019 and August 2020. She deposed he has responded to none of her emails relating to health or education and only one relating to Child A's braces. She was critical of his lack of input and deposed that his refusal to acknowledge her requests and emails feels to her like a power game played by the father to exercise control. The father deposed most of the mother's emails were statements and did not require a reply and he had replied to her requests for funds for the children's expenses by sending her the requested money.
192The father wishes to play a greater role in the decision making as to major long-term issues. He wishes to spend more time with the children and he seeks electronic communication with them on a daily basis.
the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
193The mother's proposal is that Child A spends time with the father in accordance with his wishes. She proposes Child B spends time with the father each alternate Sunday or otherwise in accordance with her wishes and at such other times in accordance with her wishes. This is consistent with the existing arrangement except at present, Child A is not spending time with the father at all. The effect of the mother's proposal is that there is little change to the children's current arrangements. It is a concern that if Child A maintains his refusal to see the father, the consequence may be that their relationship will be at risk of deteriorating to no relationship at all. This is a separation from the father which may not be in his best interests.
194The proposal of the father is that the children spend close to an equal living arrangement with both of their parents. This is a significant change to the children's circumstances and contrary to their wishes and views. This change in their circumstances is likely to have a detrimental effect upon the children as it has the potential to destabilise them when they are otherwise happy, settled and making good progress.
the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis
195There is no practical difficulty and expense which will affect the children's right to maintain personal relations and direct contact with both parents on a regular basis. The parties live close to each other. The children are able to travel between homes with ease. At present the impediment to the children maintaining personal relations and direct contact with the father is their views.
the capacity of:
(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
196Both parties are critical of the capacity of the other to provide for the children's needs on all levels, including their emotional and educational needs. As to education, the mother home schools the children. The independent evidence suggests this is successful. Although the father was not supportive of home schooling, he consents to it continuing on the basis that it is less disruptive to the children.
197The father alleged the mother influences the children and manipulates them. That is contrary to the evidence of Dr C although Ms N was unsure about this. However, Ms N noted that Child A might be afforded too much decision making power within the family and when this was relayed back to the mother she appeared to consider it a possibility. Otherwise, Ms N reported that the mother provided attuned and responsive parenting.
198The mother was critical of the father's provision for the children's emotional and practical needs. Her criticism included the children's boredom at the father's home, the lack of engagement with him and their activities. She referred to the children being unwilling to express a point of view. The mother's criticism also included the father's conduct towards her to which she said the children are exposed. The father denied the mother's allegations and deposed the children always seemed happy when they visited him.
199Ms N reported that the father was observed to care for the children and express his feelings for them. He was observed to stand his ground and provide limits and boundaries which Ms N suggested this may cause some low level tension between the father and Child A. She reported that the father will have to consider a healthy boundary between providing appropriate limit setting and enabling Child A to grow into a confident and self-assured adult.
200Ms N reported her concern was that the father may not be present, available, understanding and responsive to the children's needs.
201I noted a contrast in the father's position at various times. In some respects he made concessions, for example as to schooling, suggesting that he was child focused. In other respects he lacked insight into the children's emotional needs. For example his lack of acceptance of the children's views and their wish for flexibility was of concern. Notwithstanding the overwhelming evidence that Child A does not wish to see him at this time, the father was adamant that orders should be made that he do so and the orders should ultimately be for an equal living arrangement. The father seemed unable to appreciate that orders contrary to Child A's views might have an adverse impact upon him.
202Ms N was of the view that the difficulties in the father's approach to parenting the children are not insurmountable. Family therapy has been attempted but by reason of the high conflict between the parties, further family therapy is not recommended at this time.
the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant
203Ms N described the children as well adjusted and having minimal concern in relation to their emotional, psychological and behavioural functioning.
204She observed Child A to have busy, excitable and a somewhat verbose interpersonal style, which was consistent with the mother's report that he exhibited some hyperactive behaviours.
if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right
205This consideration is not relevant.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
206Both parties have demonstrated an appropriate attitude to the children and the responsibilities of parenthood.
207The mother said she promotes and supports a relationship between the children and the father. My impression was she was sincere when she said that she actively encouraged the children to see the father, but doing so against their wishes impacted on her relationship with them. Ms N questioned whether she does this in a consistent way. My own view is that the mother does what is necessary, but also gives the children scope for making up their own mind. I formed the view from her evidence that she is not entirely unhappy with their desire for flexibility and their wish to spend less time with the father.
208I consider the father would encourage the children's relationship with the mother. However, the father described the mother as "deceitful and manipulative". He does not believe she has any desire for the children to have a relationship with him and that she is doing everything she can to alienate him from the children.
209I do not accept that the mother has alienated, or is attempting to alienate the children from the father. Child B is still keen to spend time with the father, which would suggest that the mother has not undermined their relationship. Child A has provided an explanation for his views, which Mr A referred to as a preparedness of the children to express their own point of view.
210The high conflict between the parties as reported by various professionals remains. The mother feels denigrated and intimidated by the father. The father says the mother is mentally ill. Their long‑standing polarised views have proved resistant to change and there was no indication that this will improve in the future.
any family violence involving the child or a member of the child's family
211I have discussed family violence above. There is currently no family violence involving the children or a member of the children's family.
if a family violence order applies, or has applied, to the child or a member of the child's family – any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter
212No family violence order applies.
whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
213These proceedings commenced in 2015. There have been a number of updated reports, interim hearings and adjourned trials. Inevitably this has placed stress on both parties. It is highly desirable that these proceedings are concluded and the children do not continue to be the subject of these proceedings, or contravention proceedings.
any other fact or circumstance that the court thinks is relevant
214The parties and the children have attended family therapy. Since then their views have changed. The Christmas events and Child A's attitude to the father are a very sad set of circumstances.
215Ms N's view is that unfortunately further therapy is unlikely to yield any changes in the family dynamics.
216Once these proceedings are concluded the parties have the option of considering further therapy with the aim of reducing their conflict.
CONCLUSIONS
217Having considered the evidence in the context of the primary and additional considerations I have come to the following conclusions.
Parental responsibility
218The father seeks an order that the parties have equal shared parental responsibility for the children. The mother seeks an order that she have sole parental responsibility for the children.
219There has been conduct on the part of the father towards the mother which amounts to family violence as defined by the Act. The presumption that it is in the best interests of the children that their parents have equal shared parental responsibility for them does not apply.
220I turn to consider whether, nevertheless, it would be in the children's best interests that their parents have equal shared parental responsibility for them.
221Such an order would require the parties to consult as to major long-term issues regarding the children and to make a genuine effort to come to a joint decision about such an issue. In the circumstances of these parties, they would not be able to meet this requirement.
222Pursuant to interim orders made by consent on 30 April 2019, the mother has sole parental responsibility for educational and medical decisions. The mother was ordered to notify the father by email of any decisions she intended to make regarding the children's long-term welfare and sought his comments. The mother deposed as at August 2020 to consciously providing the father with emails regarding any health, education or other concerns she had. She sent 91 emails to the father between 1 May 2019 and August 2020. Of those 91 emails the father had not responded to any of the emails relating to health or education. In total he had responded on nine occasions, three of the responses were "ok", one was "noted" and two were "ok, that's fine."
223The mother deposed that the father's email communication did not change following the involvement of family therapy. The father said he did not respond unless it was necessary to do so. The mother feels this is a power game played by the father to exercise control.
224Dr C reported as to the detriment caused to the mother's mental health, including increased anxiety and stress if the parties were made to co-parent. Given the high conflict arising from this relationship, I am not satisfied the parties are able to consult and make a genuine effort to come to joint decisions regarding major long-term issues concerning the children.
225The children live primarily with the mother. Child B spends limited time with the father and Child A none. I have found the mother to be more attuned to the needs of the children than the father.
226In all the circumstances, I consider it to be in the best interests of the children that the mother have sole parental responsibility for them, although she should inform the father of any decision made by her as to a major long-term issue concerning the children.
Spend time arrangements
227The mother seeks an order that Child B spends time with the father each alternate Sunday or otherwise in accordance with her wishes and that Child A spends time with the father in accordance with his wishes.
228The father seeks an order that the children spend each alternate weekend with him from Friday to Monday and in the intervening week from Thursday to Saturday.
229I consider it would be in the best interests of Child B to order that he spends time, or communicates with the father in accordance with his wishes. I am guided by the recent evidence of Mr A and I have taken into account Child A's views and placed weight on them. Child A is a maturing 14 year old. The children trust Mr A. I am satisfied Child A's views have been reliably conveyed to the Court. I consider that to disregard his views has the potential to cause emotional harm and confusion to him, and to damage his close relationship with the mother. The order I intend to make leaves the door open for contact between Child A and the father in the future.
230I am mindful that if I make the orders sought by the father, Mr A was firmly of the view that "[Child A] won't go". He said "I don’t think he will run away or anything like that but he will just refuse to go." Mr A was unsure about the impact the orders would have on Child B but said she has a desire to not see her father in a "sad state" and her "maternal instinct" kicked in and she was "protecting him". However, he said Child B does not necessarily want to visit her father once a fortnight and she would also like a choice.
231The orders sought by the parties give rise to the difficult decision as to whether orders should be made contrary to the children's wishes. In the case of Child A, I consider that to do so would be counterproductive. It is likely to result in resentment and opposition.
232I do not consider Child B should be treated differently to Child A notwithstanding her young age. Mr A said both children are maturing and Child B would also like a choice. Her time with the father is to be encouraged by the mother, but will also be subject to her wishes. The children are doing well. They are happy and settled in their current living arrangements. It is not in their best interests to change these.
233I consider it would be in the best interests of Child B to make an order that she spend time with the father each alternate Sunday. Currently Child B visits the father each alternate Sunday without Child A, however it was suggested that she may not wish to visit on a Sunday if she had other activities on. It appears Child B is satisfied with the current arrangement and the mother should encourage her to continue with it.
234Having regard to my determination that the children should spend time with the father in accordance with their wishes, it follows that I will not make specific orders for the children to spend time with the father in school holidays or on special occasions. They should however be encouraged by the mother to do so.
Electronic communication with the father
235The mother proposes that the children be at liberty to contact either parent at all reasonable times. The father seeks to communicate with the children on a daily basis. There is no evidence to suggest that the children want this frequency of communication. I consider the children should have electronic communication with the parent with whom they are not living or spending time in accordance with their wishes. The father should write to Child A once a month as suggested by Mr A.
236Child B should have telephone or other electronic communication with the father on not less than one occasion each week to maintain contact between them. The father should make the call and the mother should make Child B available to speak to him and Child A if he wishes to do so. An order to this effect takes into account that Child B is younger than Child A and is not resistant to contact with the father. I consider such an order to be in the children's best interests.
Other matters
237Finally I consider it is important that the orders are explained carefully to the children. Mr A should have the opportunity to discuss the orders with them. He should inform both children that the father loves and cares for them and very much wants both of them to spend time with him. He should also inform the children that their views have been heard. The parties will have permission to provide these reasons and my orders to Mr A for that purpose.
THE PROPOSED ORDERS
238Subject to hearing from counsel and the father, I propose to make the following final orders, noting that orders 4, 6, 10, 12, 13, 14, 15, 17 and 18 are made by consent and the balance of the orders are made by determination.
1All previous parenting orders be discharged.
Parental responsibility
2The mother, [MS PATRONI], have sole parental responsibility for the children, [CHILD A], born [in] 2006 and [CHILD B], born [in] 2009.
3The mother shall promptly inform the father, [MR PATRONI] of any decision made by her about a long-term issue concerning the children.
The children's living arrangements
4The children shall live with the mother.
Spend time arrangements
5The children shall spend time with the father as follows:
(a)in respect of [Child B] each alternate Sunday or otherwise in accordance with her wishes and at such other times in accordance with her wishes; and
(b)in respect of [Child A] in accordance with his wishes.
Schooling
6The children shall continue to be home schooled by the mother.
Communication with the children
7The children be at liberty to communicate with the parent with whom they are not living or spending time by telephone, or other electronic means including email at all reasonable times and the party with whom the children are living or spending time shall facilitate this communication.
8The father be at liberty to write to or email [Child A] once a month.
9[Child B], and [Child A] according to his wishes shall have telephone or other electronic communication with the father on not less than one occasion each week, with the father to initiate the call and the mother shall ensure [Child B], and [Child A] according to his wishes are available to take the call.
Communication and Provision of information
10The parties shall communicate with each other concerning the children by email.
11The parties shall keep each other informed of a telephone number at which the other parent may be contacted in the event of an emergency affecting the children.
12The mother shall provide the father with information from any health practitioners regarding the health and/or treatment of the children as appropriate or upon the request of father to the extent that doing so is not detrimental to the treatment of the children and is consented to by the relevant practitioner.
13The mother shall provide to the father copies of relevant reports and/or information regarding the children's education, activities and/or development from relevant organisations, agencies or schools attended by the children, as appropriate from time to time.
14The mother shall provide the father with copies of annual school and Department of Education Moderator reports within seven days of receipt of any such documents.
15If either of the children suffer any health emergency, the party with the care of the children must inform the other party, without delay, of the nature of the emergency and the name an address of any health professional to whom the child has been referred.
16The father shall notify the mother without delay if either of the children suffer a significant injury or illness while in his care and the nature of the injury or illness and return the children to the mother's care as appropriate upon her request.
Travel and passports
17Subject to the Department of Home Affairs rescinding the current ban on international travel, and provided travel is limited to countries with risk levels identified as Level 1 or Level 2 only on the Australian government website prior to the mother wanting to take either [Child A] and/or [Child B] out of Australia for a holiday, the mother shall;
(a)notify the father at least 14 days before the proposed date of travel and provide him with the proposed itinerary; and
(b)provide the father at least seven days before the proposed date of travel with contact details for the children whilst travelling, including the address or addresses at which they will be staying and the telephone number or numbers upon which they can be contacted.
18Both parties shall do all such acts and sign all documents necessary to obtain for the children a current passport and/or renew same at the mother’s request, on the basis that any fees be borne equally between the parties and the mother shall have the custody of the children’s passports.
Injunctions
19On a without admission as to need basis, the parties be retrained and an injunction is hereby granted restraining them from denigrating or permitting any other person to denigrate the other party to, or in the presence or hearing of the children.
20The parties be and are hereby restrained from discussing these proceedings (including following the conclusion of the proceedings) with the children.
Other Orders
21All extant applications otherwise be dismissed.
22All 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.
23In relation to material tendered as an exhibit into evidence in these proceedings:
(a)all parties must collect the exhibits tendered by them ("their exhibits"), from the chambers of Justice Duncanson, at least 28 days, and no later than 42 days, from today's date;
(b)all parties must contact the chambers of Justice Duncanson to arrange the collection of their exhibits; and
(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.
24In the event of an appeal being lodged prior to the expiration period of 42 days, paragraphs 22 and 23 above do not apply.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
KM
Associate
4 DECEMBER 2020
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