Phelps and Budi

[2015] FCWAM 175

JURISDICTION : MAGISTRATES COURT OF WESTERN AUSTRALIA – 150 TERRACE ROAD

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: PHELPS and BUDI [2015] FCWAM 175

CORAM: KAESER M

HEARD: 30 & 31 MARCH 2015

DELIVERED : 14 AUGUST 2015

FILE NO/S: PTW 4538 of 2012

BETWEEN: MR PHELPS

Applicant

AND

MS BUDI
Respondent

Catchwords:

Child related proceedings; limited issues to resolve; overnight time commenced; family violence occurred; presumption of equal shared parental responsibility did not apply; some sharing of parental responsibility in any event in best interests of the children.

Legislation:

Family Court Act 1997 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant: Self Represented Litigant

Respondent: Self Represented Litigant

Solicitors:

Applicant: Self Represented Litigant

Respondent: Self Represented Litigant

Case(s) referred to in judgment(s):

Cox v Pedrana [2013] FamCAFC 48

Goode & Goode (2006) FLC 93-286

McCall & Clark (2009) FLC 93-405

MRR v GRR (2010) FLC 93-424

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

Background

1These parties have two children, [J] born [in] 2008 and [E] born [in] 2010. They lived together from July 2008 to May 2011. They never married so these proceedings fall to be determined under the Family Court Act 1997 (WA). These proceedings have, sadly, been on foot since August 2012. The parties have been able to agree on a range of issues, but there remain several issues outstanding.

The mother’s case

2The mother relies upon her affidavit filed on 16 January 2015, an affidavit of the maternal grandmother filed 8 December 2014 and the mother’s financial statement filed 8 December 2014.

3The mother handed up a further amended Form 1A response on the first day of the trial. She then handed up a “further further” amended response on the second day of trial. The first document sought orders in the following terms:

1.Deleted.

2.Deleted.

3.Deleted.

4.That the children, [J Phelps], born [in] 2008 and [E Phelps], born [in] 2010 (“the children”) reside with the mother and she have sole parental responsibility for the children including but not limited to educational and medical reasons.

5.Deleted.

6.That [J Phelps’] [sic] name be legally changed to [J Phelps Budi] and [E Phelps’] name be legally changed to [E Phelps Budi].

7.Deleted.

8.Deleted.

9.[Ms Budi] to receive $7,000 from [Mr Phelps] for losses sustained by [Ms Budi] on [Property R] during the 2012/2013 financial year.

10.That [Mr Phelps’] right to operate the Home Loan account for [Property R] be removed.

11.[Mr Phelps] to replace and install the internal garage door to [Property R] at his expense.

12.[Ms Budi] to receive $63,656 from [Mr Phelps] which is equal to an 80% share of all property and assets held in [Mr Phelps’] name or in joint names, owned purchased or disposed of from February 2008 to present.

13.[Ms Budi] to receive Spousal Maintenance from [Mr Phelps] at a rate of $200 per week.

14.[Ms Budi] to receive $4,424.95 from [Mr Phelps] for legal costs in relation to the original Form 1A response including the hearing on 12 November 2012.

15.That the father [Mr Phelps] be granted supervised visitation.

16.That there be an injunction against [Mr Phelps] taking the children or causing the children to be taken to church and from discussing his religious beliefs with the children.

17.[Ms Budi] to be granted twelve (12) months within which to sell [sic] [Property R].

18.[Ms Budi] to make all decisions with regard to the sale of [sic] [Property R] including but not limited to the real estate agent used and the offer price accepted.

19.[Ms Budi] to receive 100% of any profits from the sale of [Property R].

4The only changes made to those proposed orders in the document handed up the following day were:

Paragraph 12 was deleted.

Paragraph 15 was deleted.

The following paragraphs were included:

20.[Ms Budi] to receive $2,020 from [Mr Phelps] to repay the money withdrawn from the joint mortgage account on 28 August 2012.

21.That [Mr Phelps] be ordered to pay 50% of disclosed costs relating to autism diagnosis and therapies and IQ testing for [J Phelps] and [E Phelps] to the amount of $5,320.

22.That [Mr Phelps] be ordered to pay 50% of all ongoing medical and therapeutic expenses for [J Phelps] and [E Phelps] on a quarterly basis.

23.That [Mr Phelps] be ordered to complete the Circle of Security course as recommended by Consultant Pike within six (6) months.

24.That [Mr Phelps] be ordered to complete the three Autism NOOC online course through Swinburne University commencing on 2 April 2015.

25.That [Mr Phelps] be awarded one (1) weekend day per week visitation from 9.30am to 5.00pm.

5So it seems that between the first and second days of trial the respondent’s attitude towards the issue of time between the children and the father had softened and had changed from supervised visitation to unsupervised on one day per week. She otherwise reduced the amount that she sought by way of property settlement orders. She also included a number of proposed orders in relation to medical and other expenses which clearly fell within the purvey of the Child Support Agency. The Court has no power to make those orders.

The father’s case

6The father relies upon his financial statement handed up in Court on the first day of the trial and sworn on 27 March 2015. He also relies upon his trial affidavit and earlier affidavits filed on 17 and 19 November 2014, together with the affidavit of [L Phelps] filed 17 November 2014. He seeks orders in terms of a minute of proposed orders filed on 20 October 2014, namely:

1.The children, [J Phelps] ([born in] 2008) and [E Phelps] ([born in] 2010) be in the custody of their father each week from Friday 5.00pm until Saturday 5.00pm.

2.The children shall be collected from their mother’s residence at 5.00pm on Friday and shall be collected from their father’s residence at 5.00pm on Saturday unless other arrangements for receiving the children are mutually agreed upon by both parents.

3.The special occasion days of Easter Friday and Saturday, Christmas, and the children’s birthdays be shared between both parents on an alternating basis.

4.[Property R] jointly owned by [Mr Phelps] and [Ms Budi] ([born in] 1986) is to be either refinanced as soon as possible to remove [Mr Phelps’] name from the mortgage or, by 25/2/2015 it shall be put on the market and sold for a minimum of $390,000 and that any offer made on the property for a sum greater than $390,000 must be accepted by the owners.

5.The proceeds from any sale of [Property R] are to be divided equally between [Mr Phelps] and [Ms Budi].

6.The sale of [Property R] is to be conducted by a real estate agent that is independent of both owners.

7.All of the final orders sought by [Ms Budi] in her amended Form 1A – response to initiating application filed on 30 September 2014 be dismissed.

7A number of orders were made by consent at the conclusion of the trial. They were in the following terms (relating to the further further amended Form 1A response handed up on 31 March 2015):

(a)Paragraph 6, with the surname to be “[Phelps-Budi]”;

(b)Paragraphs 10, 11, 17, 18 and 24;

(c)Paragraph 19, but to be reworded in the following terms:

The respondent receive 100% of any profit of the sale of [Property R] and for the respondent to be solely responsible for any shortfall from the sale of the property and will indemnify the applicant in relation to any such shortfall.

(d)Paragraph 20, but with the time to be extended so that the order was that:

The respondent to receive $2,020 from [Mr Phelps] to repay the money withdrawn from the joint mortgage account on 28 August 2012 with that payment to be within three months of today.

(e)Paragraph 23, with that requirement to complete the Circle of Security course being subject to the availability of the course; and

(f)Paragraph 24.

8The Court otherwise preserved the parties’ ability to apply to relist in relation to the sale of the property after a period of 12 months, or in the event there is an issue with the listing of the property for sale. The proceedings were otherwise adjourned for judgment on a date to be advised.

9Before these proceedings were finalised, the mother withdrew her application for spousal maintenance (paragraph 13). She also withdrew her proposed order 9.

10The mother also accepted that the orders already made provided for a just and equitable property settlement to each party. The father concurred.

11For the sake of completeness, my view at the time those orders were made was that it was just and equitable for the Court to make a property settlement order and that the orders made were a just and equitable result to each party in all the circumstances.

12That leaves the Court to determine the following general issues:

(a)The issue of parental responsibility;

(b)The issue of how much time should be spent in the father’s care;

(c)The injunction sought in relation to church; and

(d)The child support orders in relation to costs of therapy and other medical expenses (which the Court cannot make).

13I note that both parties used terms that have not been used in the Family Law landscape in Australia for many years – such as custody and visitation. I raise this, not as a criticism of the parties, but to let each of them know that I must use the language provided for in the legislation.

The father’s evidence

14There was very little useful evidence in the father’s affidavit (which was very short). He relied upon an Anglicare report from May 2013 which said that his supervised visits generally went well. His time with the children had since progressed to unsupervised time in any event.

15He completed a parenting workshop in 2013. The balance of his affidavit related to property matters.

16In my view, the father had a fairly simplistic view about the world. I do not consider that he is unduly perceptive about emotional issues. He struggled to explain what he had learned from the parenting course (it was, however, two years ago). He did say that parenting should be a happy medium between permissive and controlling styles. He denied being “short” with the children, having now learned to give them options.

17He has also completed a workshop in parenting autistic children and now accepts J’s condition. He says that J has not had a “meltdown” in several months. I have no doubt that this improvement is due in part to the therapy that the mother arranges for J.

Father’s witnesses

18The father’s witness, L Phelps, said she had never witnessed any abusive or aggressive behaviour from the father towards the children. She saw the parties together several times prior to separation in 2011 and saw no abusive behaviour. That of course, is not conclusive evidence that such behaviour did not happen, but just that she did not see it. I have no reason to disbelieve her evidence. Little emerged from cross examination.

Parental responsibility

19Given that the parties have very different parenting styles and personalities and they have been unable to reach agreement on many issues until the trial was conducted, in my view, sharing parental responsibility is not a sensible option. Given that the children will predominantly live with the mother it is appropriate that she have sole parental responsibility. There are two exceptions, in my view; one is in relation to religion and the other is in relation to significant medical decisions. In relation to religion, both parties should be able to involve the children in the religion of their choice and in relation to significant medical issues, both parties should attempt to reach a joint decision on such matters. I therefore tailor the orders in relation to responsibility to match those findings. I therefore do not propose to put in place the injunctions sought by the mother in relation to the children attending church.

The mother’s evidence

20The mother says in her affidavit at [4] that the father “abused” the children. She sets out numerous examples as set out below:

(a)Intentionally putting his leg out to trip up the children;

(b)Pushing the children in the back until they fell over;

(c)Squeezing the children between his legs until they would cry;

(d)Physically forcing the children to clean large areas of the house by pushing or carrying the children to each item then forcing them to pick them up using his hand over theirs;

(e)Leaving the children unattended for significant periods of time;

(f)Not feeding or providing the children with water for significant periods of time;

(g)Changing the nappies at night, leaving soiled nappies next to them;

(h)Refusing to give the boys cleaned, sanitised bottles as infants;

(i)Telling [J] to “get out of the way” then pushing [J] over causing him to cry;

(j)Encouraging the boys to fight each other.

21Further at [5] she outlines examples of the verbal denigration of the children by the father, namely:

(a)You’re stupid;

(b)That’s stupid;

(c)You’re a brat;

(d)Go on run to mummy/nanny;

(e)You’re a wimp;

(f)Toughen up;

(g)They’re weird little creatures, almost like they are human.

22Post separation, the parties entered into parenting plans. Despite that, the mother says that the father did not spend regular time with the children from May 2011 to February 2012 when she ceased visits. Part of her reason for doing so was that the father’s abusive behaviour towards the children continued after separation. At [9] she outlines this behaviour as:

(a)increased name calling;

(b)smacking [J] on the head and back;

(c)threatening the children he would take them far, far away;

(d)making derogatory comments about me to the children;

(e)saying “grandma is a bitch” during visitation with their maternal grandmother and encouraging the children to say it;

(f)increased physical and verbal abuse towards me in front of the boys;

(g)intimidating, threatening behaviour towards the maternal grandmother during visitation causing her to refuse to continue facilitating visitation in February 2013.

23As a result of these issues, the mother filed a Form 4 notice of child abuse or family violence. She incorrectly reported the Department’s response and findings in her affidavit. At [10] she said that the Department “reported that [Mr Phelps] lacked parenting skills and suggested he take parenting classes”. The report which was annexed to her affidavit at “C” actually said:

… The concerns expressed in the notification do not require further action by the Department.

The allegations as detailed in [Ms Budi’s] affidavit appear to outline…an apparent deficit in his [the father’s] parenting abilities. [Therefore the Department is simply repeating the mother’s allegations; not making its own finding].

It may be fitting for [Mr Phelps] to undertake a parenting course to increase his awareness and understanding in the areas as mentioned as concerning by [Ms Budi].

24The Department also referred to the mother’s claims that [Mr Phelps] Senior is a “child molester”.

25The mother then complains that the father attended a parenting course but not the precise one recommended by the Family Consultant.

26She also claims that, notwithstanding such attendance, the father has learnt nothing and his abusive behaviour towards the children continues. She outlined examples at [13] and [14].

27Once again the mother raised allegations of concerns by a second Form 4 notice with the Department for Child Protection and Family Support in March 2014. Their response was short and indicated that no further action would be taken.

28The mother notes that J was diagnosed with “High Functioning Autism and Anxiety Disorder” in December 2012. She says the father disputes this diagnosis.

29She notes that J has a tendency to have a “meltdown” when “experiencing sensory overload”. He cannot control his emotions and requires time and support to calm down. She says that she provides such support, but according to J the father tells him off and puts him in a room by himself.

30The mother also suggested that since unsupervised time had commenced, J’s anxiety has increased. Despite these stated concerns, the mother (as mentioned) amended her proposed orders to continue unsupervised time and to not revert to supervision.

31At [29] the mother concedes that the children enjoy their time with the father. This enjoyment seems to be linked to when the father is not mean to them or when he is nice to them (which is perfectly understandable).

32The mother said that, since her affidavit was sworn, the children have made comments about going to church with the father. This is part of the reason she does not want the children to stay overnight on Fridays. On Saturday nights, the children usually stay with the maternal grandmother and the mother does not wish to vary that routine either. There was no significant evidence provided by the mother of any concerns about the father taking the children to church.

33In my view, it is an appropriate activity and one the children should be able to share with the father.

34She further complains at [31] that the father should have taken [J] to hospital after he knocked his head. He had a “huge” lump on his head and the mother took him to hospital as soon as he returned to her care. She claims that the doctor told her that [J] should have been taken to hospital straight away, but that comment is not contained in the hospital assessment annexed to her affidavit at Annexure “G”. Apart from noting the haematoma, the report indicates that all other signs were normal. That report, therefore, does not support the allegation that an immediate trip to hospital was necessary in the circumstances. This seems to be a further example of the difference in parenting styles between the parties. The mother has a much more protective and perhaps over cautious approach to all aspects of parenting, hence her trip to the hospital immediately. The father has a less cautious approach and I have no doubt assessed the bump as an everyday childhood incident and made the decision that a trip to the doctor or hospital was not necessary. In the circumstances, and given the report, it appears his decision cannot be criticised.

35The mother’s evidence did not match her actions in some respects. An example was that she said that she did not always believe the children when they said something negative about the father, but her actions do not reflect that statement. She complained several times of various things the father did wrong or did not do – all based on what the children had told her. Nowhere in her evidence did she say that the children told her something about the father but she did not believe them.

36One aspect on which she was consistent was that she earlier sought an order that the father feed the children. The mother still believed at trial that the father could/would fail to feed the children during his time with them. I did, however, note that she no longer sought such an order. In my view, this was an overreaction on her part. I have no such concerns about the father’s parenting.

Mother’s witnesses

37The mother called her mother, [A Budi]. She helped supervise time between the father and the children from October 2011 to February 2012. She did some supervision after that time, but finally stopped in May 2012.

38She has also witnessed numerous handovers since that time. The children usually stay at her house after seeing the father on weekends. She says that the father is consistently late and verbally aggressive – often in front of the children.

39The children have told her that the father denigrates them (in similar terms to the mother’s evidence). She is concerned about extending to overnight time given her observed decline in J’s behaviour and an increase in his autistic symptoms. She also corroborated some of the mother’s evidence regarding verbal and physical aggression by the father during the parties’ relationship.

40She also confirmed that the father does not appear to accept J’s autism diagnosis and refers to his behavioural issues as being a “spoilt brat” or “throwing tantrums”. I accept that lately the father has accepted the condition and will work within its parameters.

41In general terms [Ms A Budi] was a credible and reliable witness. She was clearly supportive of her daughter.

Child welfare law

42Children’s proceedings are dealt with in Part 5 of the Act. In deciding whether to make a parenting order, I must treat the best interests of the child as the paramount consideration.

43As the Full Court in Goode & Goode (2006) FLC 93-286 said at [72]:

In our view, it can be fairly said that there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with the children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.

44As the High Court of Australia emphasised in MRR v GRR (2010) FLC 93-424 and as the Full Court reemphasised in Cox v Pedrana [2013] FamCAFC 48 the legislation (in s 70A) provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

45Section 70A(2) provides that:

the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in-

(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

(b)family violence.

46Section 70A(4) provides that:

the presumption may be rebutted by evidence that 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 for the child.

47The Court therefore clearly must apply the presumption unless it does not apply pursuant to s 70A(2) or is rebutted pursuant to s 70A(4).

48In determining what is in these children’s best interests, I have also had regard to the objects of the Act and the principles which underlie those objects. They provide the context in which the above considerations are to be examined and weighed. They are set out below.

49Section 66(1) provides:

(1) The objects of this part are to ensure that the best interests of children are met by:

(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

50Section 66(2) provides:

(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

(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

(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

(d) parents should agree about the future parenting of their children; and

(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”

51I must consider the “primary” and “additional” considerations set out in s 66C(2) and (3).

Primary considerations

52The primary considerations are:

(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and

(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

The benefit to the child of having a meaningful relationship with both of the child's parents

53It is clear that meaningful means a relationship that is important, significant and valuable to the child. The Full Court in McCall & Clark (2009) FLC 93-405 made this finding and set out what it considered to be three possible interpretations of this subsection:

(a) One interpretation is that the legislation requires a Court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”);

(b) a second interpretation is that the legislature intended that a Court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents (“the presumption approach”); and

(c) the third interpretation is that the Court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”).

54The Full Court concluded that the prospective approach was preferred, but depending on the circumstances of the case, the present relationship approach may also be relevant. The Court accepted that if only the present relationship approach were followed, the Court would be limited in making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of the trial. I have no hesitation in finding that these children would benefit from having ongoing meaningful relationships with both of their parents.

The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

55Amendments were made to the definitions of family violence and abuse which took effect in relation to all cases that commence on or after 5 October 2013. This matter was commenced prior to that date so the previous version of the definition of family violence applies to this matter.

56The definition of abuse that applies to this matter is as follows:

Abuse, in relation to a child, means:

(a) an assault, including a sexual assault, of the child which is an offence under a law, written or unwritten, in force in the State or Territory in which the act constituting the assault occurs; or

(b) a person involving the child in a sexual activity with that person or another person in which the child is used, directly or indirectly, as a sexual object by the first mentioned person or the other person, and where there is unequal power in the relationship between the child and the first mentioned person.

Family violence is defined as:

Family violence means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.

57The note to that provision provides that “a person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.”

Additional considerations

Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views

58There was virtually no evidence about the children’s views in this matter.

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)

59The children clearly have a comfortable, supportive and loving relationship with the mother. I accept that they have a good relationship with the father and that they would not be unduly upset by commencing overnight time with him. They also, no doubt, have an excellent relationship with the maternal grandmother with whom they stay regularly.

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;

(ii) to spend time with the child; and

(iii) to communicate with the child

60The father has consistently tried to increase his time with the children throughout the course of these proceedings, but with little success. The mother still opposes overnight time at this stage and, in my view, that opposition is borne out of a genuine desire to protect the children. I do not accept, however, that the children are in need of such protection or that they could not cope with and enjoy overnight time. The parties have difficulties in communicating with each other and have very different views about parenting and other issues.

The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

61The father did not pay child support until about six months after separation. There was, however, no explanation in the evidence as to why.

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

62As mentioned above, I do not consider there will be any negative effect on the children by increasing the time with the father to overnight.

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

63Not applicable.

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

64I have no concerns about the capacity of either parent to care for all of the children’s needs. This is within the limited parameters of the dispute.

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

65Not applicable.

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

66Not applicable.

The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

67I have canvassed this already.

Any family violence involving the child or a member of the child’s family

68I have canvassed this elsewhere in my reasons.

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; and

(v) any other relevant matter

69A final violence restraining order was made on 7 June 2012. I was given no information in relation to the abovementioned factors. The order had since expired.

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

70Not applicable.

Any other fact or circumstance that the Court thinks is relevant

71Not applicable.

Conclusions

72There is sufficient material before the Court that I am comfortable finding that there are reasonable grounds to believe that a parent has engaged in family violence. The presumption therefore does not apply. I am therefore not required to consider equal time or substantial and significant time. In any event, neither party proposes such arrangements.

73The range of the dispute in relation to regular time between the father and the children is relatively narrow. The mother suggests there should be one day per week with the father from 9.30 am to 5.00 pm. The father suggests one overnight per week from 5.00 pm Friday to 5.00 pm Saturday.

74It is however an important step to commence overnight time.

75Although overnight is a significant step for the mother in particular who considers the children are not ready, I consider it is an appropriate step at this stage of the children’s development. The father’s proposals in relation to regular time therefore are appropriate, and accord with the objects and principals of the Act.

76Given the parties’ inability to communicate effectively and resolve parenting issues outside the Court environment, equal shared parent responsibility would be against the children’s best interests. In my view, the appropriate exceptions to this are:

(a)to allow significant medical decisions to be made jointly; and

(b)to allow each parent to expose the parent to aspects of their own faith.

Orders

1.The mother have sole parental responsibility in relation to all decisions, save and except religion and significant medical decisions, for the children, [J Phelps] born [in] 2008 and [E Phelps] born [in] 2010.

2.The parties have equal shared parental responsibility in relation to significant medical decisions for the children.

3.Each party have parental responsibility in relation to religion.

4.The children spend time with the father each week from 5.00 pm Friday until 5.00 pm Saturday.

5.The children shall be collected from the mother’s residence at 5.00 pm on Friday and shall be collected from the father’s residence at 5.00 pm on Saturday unless other arrangements for receiving the children are mutually agreed upon by both parents.

6.The proceedings are otherwise dismissed.

I certify that the preceding [76] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Secretary