QUINN and CLARKE
[2024] FCWA 59
•3 APRIL 2024
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: QUINN and CLARKE [2024] FCWA 59
CORAM: BERRY J
HEARD: [REDACTED]
DELIVERED : 3 APRIL 2024
FILE NO/S: [REDACTED]
BETWEEN: MR QUINN
Applicant
AND
MS CLARKE
Respondent
Catchwords:
PARENTING - Application by the Aboriginal paternal grandfather of the child seeking orders including to communicate and spend time with the child to enable the child to enjoy the child's Aboriginal culture - Where the paternal grandfather has not spent time or communicated with the child since September 2016 - Where the mother has been traumatised by her domestic relationship with the father and is anxious for the child not to have any contact or communication with the father or to be at risk of doing so - Where the father perpetrated family violence against the mother during cohabitation and has an extensive criminal record - Where the father was previously a party to the proceedings but was removed as a party in July 2021 - Where the father is bound by a 10-year Family Violence Restraining Order protecting the mother from him until March 2029 - Where the mother does not agree to the child spending time or communicating with members of the paternal family other than the paternal grandfather without her written consent - Where the mother lacks trust and confidence in the paternal grandfather being able to resist bringing the child into contact with the father or providing the father with information about the child's or the mother's location - Where the paternal grandfather and other paternal family members reside in Western Australia and the mother and the child reside in an undisclosed location in the Eastern States - Where the parties agree the terms of some but not all parenting orders by which the paternal grandfather communicates with and spends time with the child - Where the Court is satisfied that the mother should have sole parental responsibility for the child - Where the child's mental health outcomes are likely to be negatively impacted if he does not have engagement with the paternal family and indigenous culture but also if orders are made that heighten the mother's trauma - Orders made - Case turns on its own facts
Legislation:
Aboriginal Affairs Planning Authority Act 1972 (WA)
Family Court Act 1997 (WA)
Family Law Act 1975 (Cth)
Legal Profession Act 2008 (WA)
Restraining Orders Act 1997 (WA)
United Nations Convention on the Rights of a Child (1989)
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Ms L DeMaio |
| Respondent | : | Ms R Milton |
| Independent Children's Lawyer | : | Ms J Johnston |
Solicitors:
| Applicant | : | Aboriginal Legal Service - Perth |
| Respondent | : | Legal Aid Western Australia |
| Independent Children's Lawyer | : | Bannerman Solicitors |
Case(s) referred to in decision(s):
Allesch v Maunz (2000) 203 CLR 172
Banks & Banks (2015) FLC 93-637
Dietrich v The Queen (1992) 177 CLR 292
Donnell & Dovey (2010) FLC 93-428
Hort & Verran (2009) FLC 93-418
In the marriage of B and R (1995) 19 Fam LR 594
L v P [2022] WASCA 40
Quinn and Clarke [2024] FCWA 20
Re CP (1997) 21 Fam LR 486
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 Quinn and Clarke has been approved by the Family Court of Western Australia pursuant to s 114Q(2) of the Family Law Act 1975 (Cth).
This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2021 (WA).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
BERRY J:
Introduction
1 [Mr Quinn] (''the paternal grandfather''), the Applicant in these proceedings, is the Aboriginal paternal grandfather of [Child A], born [in] January 2014 (''the child''). [Ms Clarke] (''the mother''), the Respondent in these proceedings, is the non‑Aboriginal mother of the child.
2 [Mr A] (''the father''), who is no longer a party to the proceedings, is the Aboriginal father of the child.
3 The father is currently bound by a 10-year Family Violence Restraining Order protecting the mother from him, until 20 March 2029.[1] For the period from 1 August 2016 until 20 March 2019, the mother was protected against the father by a Family Violence Restraining Order, and this order also extended for the benefit of the child. The father and the mother were in a domestic relationship from late 2012 until 28 July 2016.
[1] Exhibit 3, ''Family Violence Restraining Order dated 20 March 2019'' (''Exhibit 3'').
4 The paternal grandfather has not spent time or communicated with the child since September 2016.[2]
[2] Trial Affidavit of the Applicant paternal grandfather affirmed on 24 May 2021, [174] (''Paternal Grandfather's Trial Affidavit'').
5 The parties and the Independent Children's Lawyer tendered updated Minutes of Proposed Orders (as amended) shortly before the delivery of closing submissions.[3] Until the end of the trial, when she amended the orders that she was seeking, the mother opposed the paternal grandfather communicating with or spending time with the child.
[3] Exhibit 8, ''Applicant paternal grandfather's Minute of Proposed Orders handed up in Court on 16 February 2024'' (''Exhibit 8''); Exhibit 9, ''Respondent mother's Minute of Final Orders Sought handed up in Court on 16 February 2024'' (''Exhibit 9''); Exhibit 10, ''Independent Children's Lawyer's Minute of Proposed Final Orders handed up in Court on 16 February 2024'' (''Exhibit 10'').
6 The mother's concessions, about the orders that she was prepared to agree to, occurred after the lunch break on the fourth day of trial, during her ongoing cross-examination by the Independent Children's Lawyer. The mother experienced significant emotional distress during her cross‑examination by the Independent Children's Lawyer just before lunch, and the mother's counsel was granted leave, without objection, to communicate with the mother over the lunch break to check on her welfare.
7 The Court accepts the mother's evidence that she experienced a panic attack during the lunch break and contacted medical and lay support persons for assistance over that break. In the Court's observation of the mother, the panic attack began to manifest during her cross‑examination, just before lunch. The mother continued being largely agreeable to the Independent Children's Lawyer's propositions after lunch. The Court accepts her evidence that she will do whatever is Court-ordered.
8 The parties now agree the terms of some, but not all, parenting orders by which the paternal grandfather communicates with and spends time with the child.
9 A central part of the paternal grandfather's case in seeking to communicate and spend time with the child is to enable the child to enjoy the child's Aboriginal culture. The mother accepts that the paternal grandfather is best able to facilitate this objective. However, the mother submits that any orders must be informed by the child's safety and the impact of the arrangements on her emotional and psychological welfare.
10 The mother has been traumatised by her domestic relationship with the father. This trauma was apparent from the mother's demeanour when giving evidence and answering questions, as well as the evidence from the professional witness. The mother remains anxious for the child not to have any contact or communication with the father, or to be at risk of doing so. Nor does the mother agree to the child spending time with or communicating with members of the paternal family, other than the paternal grandfather, without her written consent.
11 Throughout the proceedings, the mother's consistent concern has been her lack of trust and confidence in the paternal grandfather being able to resist bringing the child into contact with the father or providing the father with information about the child's or the mother's location, if he is permitted to re-establish a relationship with the child.
12 The paternal grandfather and all of the witnesses in the case attended Court and gave evidence in person. Further to a pre-trial ruling made by the Court on 23 January 2024, the mother was permitted to give evidence electronically, and did so from an undisclosed location in the Eastern States, where she lives with the child.[4]
Contents
[4] See the Orders dated 23 January 2024; Quinn and Clarke [2024] FCWA 20.
13 The balance of these reasons is arranged under the following headings and sub‑headings.
1.Orders agreed or not opposed (pages 8 to 11).
2.Orders in dispute or otherwise requiring determination (pages 11 to 12).
3.The paternal grandfather's family constellation (pages 12 to 16).
4.The mother's family constellation (page 17).
5.Evidence relied upon at trial (pages 17 to 19).
6.Observations about the parties (pages 19 to 21).
7.Applicable legal principles (pages 22 to 24).
8.The father: procedural fairness (pages 24 to 26).
9.Family violence perpetrated by the father against the mother (pages 26 to 28).
10.The father's criminal convictions since separation (pages [28] to 33).
11.Family Violence Restraining Orders obtained prior to the paternal grandfather's application:
(1)Family Violence Restraining Orders between the mother and the father (pages [33] to 35);
(2)Family Violence Restraining Order between the mother and [Mr B] (page[35]); and
(3)Family Violence Restraining Order between the mother and the paternal grandfather (pages 36 to 37).
12.Circumstances giving rise to the paternal grandfather's application (pages 37 to 44).
13.Current Family Violence Restraining Order against the father (page[s 44 to] 45).
14.Kinship obligations and child-rearing practices of the child's Aboriginal culture (pages 45 to 50).
15.Primary considerations:
(1)the mother's mental health (pages [50] to 55);
(2)the child's cultural risk (page[s 55 to] 56); and
(3)consideration (pages 56 to [57]).
16.Other additional considerations (pages [57] to [58]).
17.Discussion and disposition:
(1)parental responsibility (page[s 58 to] 59);
(2)removal of the child from Australia and the child's passport ([page 59]);
(3)photographic evidence of receipt of the photo book (page [59]);
(4)frequency of video calls (page [59]);
(5)who may be present during video and/or telephone calls (page 60); and
(6)face-to-face contact ([page 60]).
18.Proposed orders (pages [60] to 65).
Orders agreed or not opposed
14 By the time that closing submissions were delivered, the terms of the following proposed orders, sought by the Independent Children's Lawyer, were agreed or not opposed:[5]
[5] With reference to Exhibit 10.
1.[Order agreed as between the Independent Children's Lawyer and the mother. The paternal grandfather did not seek to be heard. Determination is required by the Court as per paragraph one in the next section of these reasons].
2.The child live with the mother.
3.The parties communicate by email about issues regarding these orders with the child.
4.Within seven days of the date of these orders, the parties notify each other and thereafter keep each other notified of their current email addresses, postal addresses with capacity to receive cards, gifts and letters and their current mobile phone numbers.
5.The paternal grandfather is restrained by injunction and an injunction is hereby granted restraining the paternal grandfather from sharing the mother's postal address, email address or telephone number with any third party without the mother's prior written consent.
6.Within 14 days of the date of these orders:
(a)the paternal grandfather provide [Ms C] with the mother's email address, along with a request that Ms C not disclose the email address to any other person; and
(b)the paternal grandfather provide the mother with the current email address for Ms C, subject to her consent.
7.Commencing no later than three months following the date of these orders and on a three-monthly basis thereafter, the mother provide the paternal grandfather, by email, a brief update on the child including an up-to-date photograph and, when they issue, a copy of the child's school report, with any identifying information being redacted.
8.[Order agreed as between the Independent Children's Lawyer and the mother. Determination is required by the Court as per paragraph two in the next section of these reasons].
9.By no earlier than twenty-one days after the photo book is sent to the child, the paternal grandfather be at liberty to send the child an initial letter, along with a family tree, with the paternal grandfather at liberty to record the name of the father, but there is to be no photographs of the father.
10.Commencing no later than three months from the date of these orders, the paternal grandfather be at liberty to send the child gifts, letters and cards on a monthly basis and on special occasions, such as the child's birthday, Christmas and Easter, and the mother is to ensure that the gifts, cards and letters are given to the child.
11.In the event that the child expresses a request to respond to the communication from the paternal grandfather pursuant to the previous paragraphs, the mother use her best endeavours to facilitate and encourage the child to continue to do so or request a third party to do so.
12.[Order agreed as between the Independent Children's Lawyer and the mother. Determination is required by the Court as per paragraph three in the next section of these reasons].
13.Commencing twelve months from the date of these orders and in addition to the communicating pursuant to the preceding paragraph, the child communicate with the paternal grandfather in accordance with his wishes and the mother use her best endeavours to facilitate and encourage this contact or request a third party to do so.
14.Commencing twelve months from the date of these orders, the mother ensure that the child has a personal mobile phone which contains the number of the paternal grandfather and will provide the child's phone number to the paternal grandfather and keep him updated in relation to the same.
15.[Order agreed as between the Independent Children's Lawyer and the paternal grandfather. Determination is required by the Court as per paragraph four in the next section of these reasons].
16.[Order agreed as between the Independent Children's Lawyer and the mother. Determination is required by the Court as per paragraph five in the next section of these reasons].
17.To give effect to the preceding orders, the mother will ensure that the child will be given his own phone and will provide the phone number to the paternal grandfather and keep him updated in relation to the same.
18.[Order agreed as between the Independent Children's Lawyer and the mother. The paternal grandfather did not seek to be heard. Determination is required by the Court as per paragraph six in the next section of these reasons].
19.[Order agreed as between the Independent Children's Lawyer and the mother. The paternal grandfather did not seek to be heard. Determination is required by the Court as per paragraph seven in the next section of these reasons].
20.The paternal grandfather be restrained by injunction and an injunction is hereby granted restraining the paternal grandfather from sharing information about the child with the father or causing or allowing a third party to share this information.
21.Save and except with the prior written consent of the mother, the paternal grandfather be restrained by injunction and an injunction is hereby granted restraining him from:
(a)posting any of the photographs of the child on social media;
(b)attending any education institution that the child may attend including any before or after school care or any vacation care; and
(c)bringing the child into contact with any of the following people:
(i) the father;
(ii) [Mr D], born on 15 July 1988;
(iii) Mr B, born on 23 February 1986; and
(iv) [Mr E], born on 7 August 1998.
22.The mother be permitted to provide copies of these orders to:
(a) any school the child attends; and
(b)any medical, mental health practitioner that may assist the child from time to time.
23.The mother be at liberty to provide a copy of these orders and the reasons for decision to the mother's mental health practitioners.
24.All previous parenting interim orders and applications be hereby discharged.
25.All subpoenaed documents be returned to source.
26.There be no orders as to costs.
27.Subject to any appeal process, the order for the Independent Children's Lawyer be discharged.
28.The said proceedings be otherwise dismissed.
Orders in dispute or otherwise requiring determination
15 The Court is required to determine what orders are in the best interests of the child about the following matters:
1.Whether to make an order for sole parental responsibility in favour of the mother.
2.Whether the mother should be required to provide photographic evidence that the child has received a photograph book containing photographs of paternal family members (but not the father) (''the photo book'').
3.The frequency of video calls between the paternal grandfather and the child.
4.Whether the paternal grandfather must ensure that there is no one else present during any video or telephone calls between himself and the child, except with the prior written consent of the mother.
5.Whether a spend-time order for face-to-face contact between the paternal grandfather and the child should be made to take effect when the child is 12 years of age.
6.Whether the mother be at liberty to remove the child from the Commonwealth of Australia for the purposes of holidays.
7.Whether, subject to any other requirements of the Commonwealth of Australia, the father's consent to the issue of an Australian passport for the child be dispensed with, and the relevant Commonwealth Department be requested to issue an Australian passport for the child.
16 The paternal grandfather did not seek to be heard in relation to orders about parental responsibility (contained at paragraph one to the Independent Children's Lawyer's Minute of Proposed Final Orders) or international travel and passports (contained at paragraphs 18 to 19 of the Independent Children Lawyer's Minute). The paternal grandfather did not oppose the order enabling possible communication between the mother and his sister-in-law, Ms C (contained at paragraph six of the Independent Children's Lawyer's Minute).
The paternal grandfather's family constellation
17 The following summary is drawn mainly from the paternal grandfather's evidence.
18 The paternal grandfather and his late wife, [Ms F] (''[Ms F]''), are Aboriginal people identifying with the [Aboriginal Australian People Group A], [Aboriginal Australian People Group B] and [Aboriginal Australian People Group C] peoples.[6] The paternal grandfather's grandfather, [Mr G], was an Aboriginal Australian People Group A man. The paternal grandfather's grandmother, [Ms H], was an Aboriginal Australian People Group C woman from the [Region A] area of Western Australia .
[6] Paternal Grandfather's Trial Affidavit, [16].
19 As a child, Ms H was removed from her family and placed in the [Mission A]. Ms H did not know where she was from or who her people were until she became an adult, so the paternal grandfather grew up without an understanding of his family history or culture. Some of that understanding has since been obtained, but much has been lost.[7]
[7] Ibid [6]-[7].
20 Ms F's mother, [Ms I], was from the [Town A] region of Western Australia, but her family was removed and put into a mission in [Town B], with many other people of different Aboriginal nations. Ms I grew up thinking that she was Aboriginal Australian People Group B (from the [City A] area) but did not know of her origins from the Region A area until later in life. Ms F's father was a Aboriginal Australian People Group A man. The paternal grandfather's wife and parents have passed away.[8]
[8] Ibid [8].
21 The paternal grandfather's mother, [Ms J], was born in the Mission A, and married an Australian man of English heritage, [Mr K].[9] The paternal grandfather has four siblings, [Mr L] (deceased), [Mr M], [Ms N] and [Ms O] (''[Ms O]''). Ms F had three siblings, [Dr A] (''[Dr A]''), Ms C (''Ms C''), and [Ms P] (deceased).[10]
[9] Ibid [9].
[10] Ibid [13]-[14].
22 Ms O, Dr A and Ms C swore affidavits and gave evidence at trial.
23 The paternal grandfather and Ms F have five male children:[11]
(1)Mr B, born [in] 1986 (Mr B'');
(2)Mr D, born [in] 1988 (''Mr D'');
(3)Mr A, born [in] 1991 [the father];
(4)Mr E, born [in] 1998 (''Mr E''); and
(5)[Child B], born [in] 2006 (''[Child B]'').
[11] Ibid [19].
24 Mr B has a history of violence against domestic partners, two of whom gave evidence in these proceedings. Mr B was subject to criminal charges pending in City A, based upon annexures to the mother's most recent trial affidavit.[12] Mr D has been in prison for 14 months and is due for release in May 2024. He has an extensive criminal history, based upon annexures to the mother's trial affidavits. The mother also annexed to her first trial affidavit a number of social media posts from Mr E, showing him sharing or commenting upon the following content, including:[13]
[12] Trial Affidavit of the Respondent mother affirmed on 20 May 2021 (''Mother's Trial Affidavit''), Annexure ''SC-12'', ''eCourts Portal listings for [Mr D] and [Mr B]'', electronic pages 167-172 of 186.
[13] Ibid Annexure ''SC-13'', ''Facebook posted by [Mr E] dated various'', electronic pages 173‑180 of 186.
Girls are prettier when they are happy…that's why you gotta [sic] stress her out so nobody looks at her[.]
[…]
[F]uck sex let's walk to the cemetery to show u [sic] where u [sic] gone end up if u [sic] play wit[h] me ♥[.]
[…]
Smash their noses right in for dem [sic][this statement appears to have been authored by [Mr E]][.]
I'm tired of being nice I wanna [sic] hit someone with a baseball bat.
[…]
Saying ''cone?'' to me is the equivalent of saying ''walkies'' to your dog[.]
[…]
Maggot kunts [sic] like this get slaughtered and are the reason why I hate most white cunts always thinking our culture is a joke cunts are all lucky we don't just wipe you lot like this out. [W]hat's the use for ya [sic] being here just fuck off u [sic] scum kunts [sic] wonder how many of these cunts have gotten consequences for the disrespect is this what you dogs do hey fucking joke honestly!! [this statement appears to have been authored by [Mr E]]
(As per original)
25 The paternal grandfather gave evidence that in respect of the last social media post, this was posted by Mr E in response to the fatal shooting of an indigenous man in City A. Mr E has spent three months in prison on a conviction of driving under the influence of alcohol. Mr E uses [Drug A] and has violent relationships with women.
26 On 16 September 2020, the mother's solicitors wrote to the other parties, enclosing a photograph of Mr B's public profile picture on Facebook, which showed him smoking and holding a firearm, his three‑year-old son holding another firearm, and his brother, Mr E, in the background. The mother's solicitors expressed concern that the paternal grandfather was permitting his sons and grandchildren to access his firearms.[14]
[14] Ibid Annexure ''SC-15'', ''Legal Aid Letter to the Independent Children's Lawyer dated 16 September 2020 enclosing firearm photograph'', electronic pages 184-186 of 186.
27 The mother does not accept that the paternal grandfather is a good role model, including because of the behaviour of his adult sons. The paternal grandfather conceded that all of his adult children posed a risk of harm to the child and said that he would consent to injunctions restraining him from bringing the child into contact with them.
28 The paternal grandfather and Ms F have four grandchildren:[15]
(1)[Mr Q], born [in] 2003 (''[Mr Q]'');
(2)[Child C], born [in] 2008 (''[Child C]'');
(3)[Child A], born [in] 2014 ["Child A"]; and
(4)[Child D], born [in] 2017 (''[Child D]'').
[15] Paternal Grandfather's Trial Affidavit, [20].
29 Mr Q, Child C and Child D are Mr B's children. Mr Q swore an affidavit and gave evidence at trial. [Ms R], Mr Q's mother, swore an affidavit and gave evidence at trial (''[Ms R]''). [Ms S], Child B's mother, swore an affidavit and gave evidence at trial (''[Ms S]'').
30 The paternal grandfather and his late wife travelled around the country and visited family in regional and interstate places in order to keep in contact with them.[16] The paternal grandfather has worked as a Commonwealth public servant since 1990. In 2009, he moved to City A with a job in the [State Government Department A] in City A, working with Aboriginal communities in the [Region B] and [Region C] regions. Child B travelled with him and attended school in City A. Ms F and the four older boys remained in Perth, with Ms F working and caring for the boys. The paternal grandfather travelled ''backwards and forwards'' between Perth and City A on weekends.[17]
[16] Ibid [23].
[17] Ibid [27]-[29].
31 Mr E moved to City A in 2010. In 2011, Ms F also moved to City A. The three older boys remained living in the paternal grandfather's Perth home, and the two family groups visited each other.[18]
[18] Ibid [30].
32 The paternal grandfather and Ms F (during her lifetime) maintained a close relationship with Ms R and Ms S and their families, in Ms F's case, up to the date of her passing, and in the paternal grandfather's case, up to the date of trial, many years after each of these women separated from Mr B. They were each supported by the paternal grandparents in keeping themselves, Mr Q and Child C safe.[19] The paternal grandfather says that he supports Mr B's current partner, [Ms T] (''[Ms T]''), in her relationship with Mr B, and her son Child D. The relationship also has periods of separation and occasions when Ms T has called the police.[20]
[19] Ibid [81].
[20] Ibid [49].
33 Since Child C was around 12 years of age, she has lived with Mr B in City A. Ms S was aware of problems in the relationship between Mr B and Ms T, because Child C would tell her when the police were called. None of the adults told her of these problems.
34 In March 2017, Mr Q started living with the paternal grandfather in City A, before returning to Perth for a period of time to study, and then returning to City A again. At the time of trial, he remained living with the paternal grandfather. Mr Q has a close and loving relationship with the paternal grandfather. He is currently unemployed and will shortly commence a university bridging course.
35 Ms S and Ms R hold the paternal grandfather in high regard and consider him to be a role model for their children.
The mother's family constellation
36 The mother has a close and supportive relationship with each of her immediate family members, all of whom (save for her brother) gave evidence. Both of her parents and her two sisters gave evidence. The mother's sisters and parents have been supportive of the mother and the child since she separated from the father.
37 The mother and the child have moved to the Eastern States to assist in the care of an elderly relative, in mid-2023. Each of her parents and sisters have visited the child, and in the case of her parents, the interstate visits have happened on several occasions.
Evidence relied upon at trial
38 The paternal grandfather relied upon the following evidence:[21]
[21] Papers for the Judicial Officer filed by the Applicant paternal grandfather on 1 February 2024, electronic page 2 of 21 (''Paternal Grandfather's Papers for the Judicial Officer'').
1.Affidavit of Ms S affirmed on 5 May 2021 and filed on 24 May 2021.
2.Affidavit of Dr A affirmed on 21 May 2021 and filed on 24 May 2021.
3.Affidavit of Ms C sworn on 21 May 2021 and filed on 24 May 2021.
4.Affidavit of Ms R affirmed on 21 May 2021 and filed on 24 May 2021.
5.Trial Affidavit of the paternal grandfather affirmed on 24 May 2021 and filed on 1 June 2021.
6.Affidavit of Mr Q affirmed and filed on 16 July 2021.
7.Affidavit of Ms O affirmed and filed on 20 July 2021.
8.Updated Trial Affidavit of the paternal grandfather affirmed and filed on 22 January 2024.
39 The mother relied upon the following evidence:[22]
[22] Papers for the Judicial Officer filed by the Respondent mother on 1 February 2024, electronic pages 1‑2 of 26 (''Mother's Papers for the Judicial Officer'').
1.Affidavits of the Single Expert Witness, [Mr U] (''[Mr U]'') sworn on 9 September 2020 (filed on 22 September 2020) and 30 November 2023 (filed on 1 December 2023).
2.Trial Affidavit of the mother affirmed on 20 May 2021 and filed on 26 May 2021.
3.Affidavits of [Ms V] affirmed on 21 May 2021 (filed on 24 May 2021) and sworn on 18 January 2024 (filed on 19 January 2024).
4.Affidavits of [Ms W] sworn on 20 May 2021 (filed on 24 May 2021) and 19 January 2024 (filed on 19 January 2024).
5.Affidavits of [Ms X] sworn on 20 May 2021 (filed on 24 May 2021) and 19 January 2024 (filed on 19 January 2024).
6.Affidavits of [Mr Y] sworn on 6 May 2021 (filed on 8 July 2021) and 18 January 2024 (filed on 19 January 2024).
7.Family Court Report prepared by [Ms Z] (''Ms Z'') dated 1 July 2023.[23]
8.Affidavit of [Ms AA] sworn on 3 January 2024 and filed on 6 February 2024.
9.Affidavit of [Ms AB] (''Ms AB'') affirmed and filed on 5 January 2024.
10.Updated Trial Affidavit of the mother sworn and filed on 19 January 2024.
11.Subpoenaed material produced by the Western Australia Police.[24]
[23] Received into evidence as part of Exhibit 1, ''Joint Consolidated Tender Bundle handed up in Court on 12 February 2024'' (''Exhibit 1''), electronic pages 288-292 of 575.
[24] Contained in Exhibit 1.
40 The Independent Children's Lawyer relied upon the following evidence:[25]
1.Child Conference Memorandum of [Family Consultant A] dated 20 June 2019.[26]
2.Affidavits of the Single Expert Witness, Mr U, sworn on 9 September 2020 (filed on 22 September 2020) and 30 November 2023 (filed on 1 December 2023).
3.Family Court Report prepared by Ms Z dated 1 July 2023.[27]
[25] Statement of issues and facts filed by the Independent Children's Lawyer on 6 February 2024, electronic page 1 of 3.
[26] Received into evidence as part of Exhibit 1, electronic pages 1-4 of 575.
[27] Exhibit 1, electronic pages 288-292 of 575.
41 The Court accepted into evidence a substantial amount of material by consent, including publications relied upon by the paternal grandfather.[28] During the trial, the paternal grandfather's counsel was requested to, and did, identify by page number those parts of the publications upon which particular reliance was placed.
Observations about the parties
[28] Ibid electronic pages 377-574 of 575.
42 Save as otherwise specifically found in these reasons, the Court generally prefers the evidence of the mother to the evidence of the paternal grandfather, for the following reasons:
1.The paternal grandfather was not candid with the Single Expert Witness on 29 November 2023, in failing to tell him about the police attendance at the paternal grandfather's Perth home on 6 November 2023.[29] Events occurring at the paternal grandfather's home was one of the subjects of this telephone call on 29 November 2023.[30]
[29] Affidavit of the Single Expert Witness affirmed on 30 November 2023, Annexure ''A'' (''Second Single Expert Witness Report''), electronic pages 5 and 16 [89] of 24; Mr U interviewed the paternal grandfather on 7 November 2023, and had a further telephone follow-up call on 29 November 2023.
[30] Ibid [89]-[90].
2.The paternal grandfather annexed to his trial affidavit a complete record of text message communications with the mother sent between 5 August 2016 and 8 November 2016. However, this record does not include Facebook messages also sent between the parties during the same period, as revealed by the tender bundle admitted by consent.[31]
[31] Paternal Grandfather's Trial Affidavit, Annexure ''A'', electronic pages 20-25 of 68; Exhibit 1, electronic pages 330-373 of 575.
3.In November 2023, the paternal grandfather told the Single Expert Witness that he had not had contact with the father for three months, because the father was on and off drugs, and did not answer any communication from the paternal grandfather. The paternal grandfather told the Single Expert Witness that the father was not living at the paternal grandfather's Perth home.[32] This sits uncomfortably with the paternal grandfather's earliest oral evidence that the father lived there from around his birthday [in [early] 2023] until October or November 2023.[33]
[32] Second Single Expert Witness Report, [87].
[33] Transcript of the cross-examination of the paternal grandfather (12 February 2024) 3 line 35 to 4 line 10 (''Transcript, Paternal Grandfather, 12 February 2024'').
4.The paternal grandfather acknowledged that he had minimised some of the problems in his family during his interview with the Single Expert Witness.[34]
5.The paternal grandfather gave inconsistent evidence about how he obtained the address of the mother's sister, Ms W (''Ms W''), when he attended at her home on 12 November 2016. In his trial affidavit, the paternal grandfather stated that this address was on the split tenancy form that the mother had emailed to him on 22 August 2016.[35] During his interview with the Family Consultant on 5 June 2019, the paternal grandfather stated that he was aware of the address because the father knew the location.[36] The Court accepts the evidence of Ms W that she did not disclose her address to the paternal family.[37] The split tenancy form was not produced in evidence.
6.The paternal grandfather also gave inconsistent evidence about how he obtained the address of the maternal grandmother when he attended at her home on 25 December 2016. In his trial affidavit, the paternal grandfather stated that this address was on the housing application which was scanned onto his home computer when the mother and the father:[38]
…were applying for their home while living with us those few years earlier. I did not know if it was the correct address and was not aware that it was [Ms Clarke's] parents['] address as no-one answered the door.
(As per original)
In his oral evidence, the paternal grandfather said that he could not recall how he obtained the address.[39] During the trial, the paternal grandfather produced an undated ''Next of Kin'' form, which contains the maternal grandmother's name and address.[40] The mother did not recall the document but acknowledged that this information was in her handwriting. The mother did not accept that her signature was signed in her usual manner. The maternal grandmother's address on the ''Next of Kin'' form is for a property acquired by the maternal grandparents on 22 January 2016.[41]
7.Ms Z recommended that the paternal grandfather undertake a domestic violence course, to assist in understanding the mother's trauma. The paternal grandfather did not recall being advised by Ms Z to undertake the course.[42] The Court accepts that the recommendation was made and disregarded by the paternal grandfather.
[34] Affidavit of the Single Expert Witness sworn on 9 September 2020, Annexure ''A'', [54] (''First Single Expert Witness Report''); the final sentence reads, ''[the paternal grandfather] pointed out that his other sons [Mr E] and [Mr D] have not been involved in violence or other problems''. The paternal grandfather acknowledged that this sentence was not accurate.
[35] Paternal Grandfather's Trial Affidavit, [99]
[36] Exhibit 1, electronic page 2 of 575.
[37] Affidavit of Ms W sworn on 20 May 2021, [47]-[48].
[38] Paternal Grandfather's Trial Affidavit, [104]
[39] Transcript of the cross-examination of the paternal grandfather (13 February 2024) 5 line 50 (''Transcript, Paternal Grandfather, 13 February 2024'').
[40] Exhibit 2, ''Next of Kin advice handed up in Court on 13 February 2024'' (''Exhibit 2'').
[41] Exhibit 1, electronic pages 374-375 of 575.
[42] Transcript, Paternal Grandfather, 13 February 2024, 17 line 20.
43 The mother gave her evidence openly and presented as a traumatised person, in response to triggering questions in cross‑examination. The mother has been drug-free for many years.
Applicable legal principles
44 In the exercise of its non-federal jurisdiction under the Family Court Act 1997 (''the Act''), the Court must have regard to a number considerations, including the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children, the need to protect the rights of children and promote their welfare, and the need to ensure protection from family violence.[43]
[43] Family Court Act 1997 (WA) s 37(1).
45 Subject to the Act, the Court may make such order as it thinks proper, or make an order until further order, or discharge or vary an order, or suspend any part of an order, and may revive the operation of any part of an order so suspended.[44]
[44] Ibid s 37(2).
46 These proceedings are otherwise governed by Part 5 of the Act (underlining added).
47 The objects of Part 5 are to ensure that the best interests of children are met by a number of considerations, including protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence, and ensuring that children receive adequate and proper parenting to help them achieve their full potential.[45]
[45] Ibid s 66(1).
48 The principles underlying these objects, except when it is or would be contrary to a child's best interests, include children having 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 children having a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).[46] An Aboriginal child's right to enjoy his or her Aboriginal culture includes the right to maintain a connection with that culture and to have the support, opportunity and encouragement necessary to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views, and to develop a positive appreciation of that culture.[47]
[46] Ibid s 66(2).
[47] Ibid s 66(3).
49 An additional object of Part 5 is to give effect to the Convention on the Rights of the Child (''the Convention'') done at New York on 20 November 1989 as ratified by Australia at 17 December 1990.[48] The Convention entered into force for Australia on 16 January 1991. However, the provisions of the Convention are not directly enforceable because they are not implemented under domestic law.[49]
[48] Ibid s 66(4).
[49] Dietrich v The Queen (1992) 177 CLR 292 at 305 and 347-349.
50 The preamble to the Convention takes ''due account of the importance of the traditions and cultural values of each people for the protection and harmonious development of the child''.[50] Article 29(1)(c) records that State Parties agree that the education of the child shall be directed to a number of considerations, including the development of respect for the child's parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilisations different from his or her own.[51] Article 30 provides that in those States in which persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture.[52]
[50] Convention on the Rights of the Child, opened for signature on 20 November 1989, 1577 UNTS 3 (entered into force on 2 September 1990) (''Convention on the Rights of the Child''), Preamble.
[51] Ibid art 29(1)(c).
[52] Ibid art 30.
51 In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration [regardless of the biological (or other) connection of the child to the parties to the proceedings].[53] In determining what is in a child's best interests, the Court must take into account a number of factors described as primary considerations and additional considerations.[54]
[53] Family Court Act 1997 (WA) s 66A; Donnell & Dovey (2010) FLC 93-428, [79]-[80] (''Donnell & Dovey'').
[54] Family Court Act 1997 (WA) ss 66C(1), (2), (3A) and (3).
52 However, none of the primary and additional considerations which only refer to ''parents'' can encompass persons, including grandparents, who are not ''parents''.[55] This statutory distinction between ''parents'' and other persons does not prevent the Court from taking all relevant matters into account, because as part of the additional considerations the Court must take into account ''any other fact or circumstance that the [C]ourt thinks is relevant''.[56]
[55] Hort & Verran (2009) FLC 93-418, [84].
[56] Family Court Act 1997 (WA) s 66C(3)(m); Donnell & Dovey (2010) FLC 93-428, [101]-[104].
53 In applying Part 5 to the circumstances of an Aboriginal child or identifying the person who has exercised, or may exercise, parental responsibility for the child, the Court must have regard to any kinship obligations and child-rearing practices of the child's Aboriginal culture.[57]
[57] Family Court Act 1997 (WA), s 71A.
54 The Court is required to consider, but is not necessarily required to discuss, every factor under section 66C of the Act. The Court is only required to discuss those factors which have sufficient relevance and materiality to the outcome of the proceedings.[58]
The father: procedural fairness
[58] Banks & Banks (2015) FLC 93-637, [52]; L v P [2022] WASCA 40, [14] and [61]-[62].
55 The paternal grandfather commenced the proceedings by application filed on 21 November 2018, seeking, until further order, that the child be permitted to spend reasonable time with him, defined to include seven hours of daytime contact on the first Saturday of each month, and further times as agreed between the parties. The paternal grandfather also applied, until further order, for the child to have electronic communication with him, by Skype, FaceTime or telephone, to include once per week for up to 15 minutes, and otherwise as agreed. The father was named as the First Respondent, and the mother was named as the Second Respondent in the proceedings.
56 On 25 January 2019, the father was ordered to file a Form 1A Response and Case Information Affidavit within 28 days. He failed to do so.
57 On 29 March 2019, the time for the father to comply with the Orders made on 25 January 2019, requiring him to file responding documents, was extended by a further 21 days. He failed to do so. The mother was ordered to file a Form 1A Response, Case Information Affidavit, and a Form 4 Notice of Child Abuse or Family Violence (or Risk) within 42 days. She did so, within the time ordered on 9 May 2019 (''the mother's Form 4'').[59] Within 21 days after service, the father was granted leave to file and serve an affidavit in response to the mother's Form 4. He failed to do so.
[59] Received into evidence as Exhibit 6, ''Form 4 Notice of Child Abuse or Family Violence (or Risk) filed by the Respondent mother on 9 May 2019'' (''Exhibit 6'').
58 On 9 May 2019, the mother filed a Form 1A Response, Case Information Affidavit and her Form 4. Relevantly, for the purpose of evaluating procedural fairness to the father, the mother applied for final orders including those that she currently seeks, for sole parental responsibility for the child, for liberty to remove the child from the Commonwealth of Australia for the purpose of holidays, and for a passport to issue for the child and the father's consent to the same to be dispensed with.
59 The parties, including the father, attended a Case Assessment Conference and were interviewed by a Family Consultant on 5 June 2019. The mother attended the Case Assessment Conference by telephone.
60 On 9 October 2019, the father was again ordered to file a Form 1A Response, Case Information Affidavit and an affidavit in response to the Form 4 filed on 9 May 2019, within 28 days. He failed to do so.
61 The father did participate and was interviewed by video by the Single Expert Witness on 18 May 2020, for the purpose of the first report prepared by the Single Expert Witness in these proceedings, dated 9 September 2020.[60] The Single Expert Witness, Mr U, was appointed by order made on 9 October 2019.
[60] First Single Expert Witness Report, electronic page 6 of 32.
62 On 12 July 2021, a Magistrate in Chambers ordered the father to be removed as a party to the proceedings. By this date, the father had not filed any documents in the proceedings. By this date, the father had failed to comply with orders made on 25 January 2019, 29 March 2019, and 9 October 2019, for him to file responding documents. Since being removed as a party to the proceedings, the father has not applied to be reinstated, nor has he otherwise sought to file any documents.
63 The Court is satisfied that the father has been given a reasonable opportunity to be heard in these proceedings and has been given adequate notice of the type of orders being sought by the paternal grandfather and the mother. Providing the opportunity to be heard is all that the law and principle requires.[61]
Family violence perpetrated by the father against the mother
[61] Allesch v Maunz (2000) 203 CLR 172 at 185 [38] and see also at 186 [39]-[40].
64 Since separation, the mother has remained the child's primary carer.
65 According to the mother's Form 4, to which the father did not respond, despite being ordered to do so on two occasions, her relationship with the father was marred by family violence, and this is substantially corroborated by the father's extensive criminal record, to which reference will shortly be made.
66 According to the mother:
1.The father started being violent towards the mother when she was pregnant with the child, in 2013.[62]
[62] Exhibit 6, Part G, electronic page 6 of 11 [2].
2.The father's violence was exacerbated by his use of Drug A and [Drug B].[63]
[63] Ibid.
3.The father called the mother names like ''dumb cunt'', ''stupid bitch'', and his main name for her was ''white cunt''. The child was present during this verbal abuse.[64]
[64] Ibid [4].
4.Occasionally during arguments, the father held a knife in his hand and waved it around. On one occasion, he threatened to kill the mother while the child was present.[65]
[65] Ibid [5].
5.The father would sometimes take the mother's phone, and control who she could speak to or spend time with.[66]
[66] Ibid [3] and [6].
6.The father regularly threatened that he would take the child from the mother if she ever left him. The father threatened to take the child to Aboriginal lands ''up north where no white people are allowed'' so that she could not get to him. He also threatened that he would bash her if she took the child from him.[67]
7.When driving between City A and Perth with the child in the car, the father often threatened to crash the car and kill himself, the mother and the child.[68]
8.On 21 January 2016, at their home in City A, the mother witnessed the father punch his brother, Mr B, in the face, and push his eye socket in, which required Mr B to be hospitalised. The mother saw the father knock Mr B's girlfriend, [Ms AC] (''[Ms AC]''), unconscious. She was on the ground and out for a minute or maybe longer.[69]
9.Mr B told the mother that he would bash her because the father had bashed Ms AC. The mother obtained a Family Violence Restraining Order against Mr B for 12 months.[70]
10.After that incident, the mother and the father no longer went to the home of the paternal grandfather and Ms F, because Mr B lived there.[71]
11.The mother saw the father and Mr B assault their cousin, [Ms AD], including by dragging her across the ground by her hair.[72]
12.When the police were called, arising from violent incidents within the family, nobody would admit that anything that had happened.[73]
13.On 23 July 2016, the father told the mother that if she moved out, he would kill her. He grabbed her by the throat, pushed her to the ground, and held a knife to her throat.[74]
14.On 28 July 2016, the father was behaving erratically and shouting at his mother and his aunt (Ms C, who gave evidence during the trial) as well as shouting at the mother.[75]
15.Ms C told the mother to get in a car with her, and both Ms C and Ms F told the mother to leave the father, for her own safety and the child's safety.[76]
[67] Ibid [7].
[68] Ibid [9].
[69] Ibid [10]; the mother's evidence is consistent with a Western Australia Police report made on 23 January 2016 by Mr B and his girlfriend, contained Exhibit 1, electronic pages 85-87 of 575.
[70] Exhibit 6, Part G, electronic page 6 of 11 [12].
[71] Ibid.
[72] Ibid [13].
[73] Ibid.
[74] Ibid electronic page 7 of 11 [18] and [21].
[75] Ibid [29].
[76] Ibid [29]-[30].
67 The paternal grandfather did not dispute the mother's evidence about the matters recounted above in his affidavit in response to the mother's Form 4.[77] The paternal grandfather stated that both the father and the mother were using ''hard drugs''.[78] The mother acknowledged that she did so during the relationship and described the father as her ''drug dealer''.[79]
[77] Received into evidence as Exhibit 7, ''Affidavit of the Applicant paternal grandfather sworn on 25 June 2019'' (''Exhibit 7'').
[78] Ibid [6].
[79] Mother's Trial Affidavit, [80].
68 On 9 September 2016, the father texted the mother about missing the child. On 6 October 2016, the father made a number of calls to the mother, which she did not answer. According to the mother, the father called her six times and left voicemails swearing at the mother and calling her a ''cunt''.[80] The father was subsequently convicted of two breaches of the Family Violence Restraining Order protecting the mother against him.[81]
[80] Ibid [295]-[296].
[81] Exhibit 1, electronic page 13 of 575.
69 The paternal grandfather and his late wife last spent time with the child on 11 September 2016, under supervision from the mother (and attended at a distance by the maternal grandmother, and the mother's sister, Ms X),[82] after which the mother terminated communication between the child and the paternal family, for reasons later to be explored.
The father's criminal convictions since separation
[82] Mother's Trial Affidavit, [336]-[338].
70 Since separating from the mother, the father has subsequently been convicted of the following offences, committed on the following dates:
(a)possessing a prohibited drug (Drug A) (November 2016 and January 2017);[83]
[83] Exhibit 1, electronic pages 36 and 45 of 575.
(b)breach of a conditional release order (September 2016 and October 2016);[84]
[84] Ibid electronic page 12 of 575.
(c)driving with a prescribed illicit drug (December 2016);[85]
[85] Ibid.
(d)possessing stolen or unlawfully obtained property (December 2016);[86]
[86] Ibid electronic page 37 of 575.
(e)breach of a bail undertaking (twice in March 2017, and May 2017);[87]
[87] Ibid electronic page 45 and 53 of 575.
(f)breach of protective bail conditions (May 2017);[88]
[88] Ibid electronic page 47 of 575.
(g)failure to give driver identity information (July 2017);[89]
[89] Ibid electronic page 11 of 575.
(h)unlawful assault occasioning bodily harm in circumstances of aggravation (January 2018);[90]
[90] Ibid electronic page 57 of 575.
(i)escaping from lawful custody (January 2018);[91]
[91] Ibid electronic page 54 of 575.
(j)breach of a bail undertaking (twice in February 2018);[92]
[92] Ibid electronic page 63-64 of 575.
(k)possession of stolen or unlawfully obtained property (April 2018);[93]
[93] Ibid electronic page 65 of 575.
(l)use of a prohibited drug (April 2018);[94]
[94] Ibid electronic page 60 of 575.
(m)receiving (April 2018);[95]
[95] Ibid electronic page 62 of 575.
(n)possessing drug paraphernalia in or which there was a prohibited drug or plant (twice in April 2018);[96]
[96] Ibid electronic pages 61-62 of 575.
(o)possessing a prohibited drug (April 2018);[97]
(p)driver failed to stop in circumstances of aggravation (August 2019);[98]
(q)aggravated reckless driving confiscation zone pursuit (August 2019);[99]
(r)possessing a prohibited drug (May 2020);[100]
(s)breach of a bail undertaking (November 2020);[101]
(t)drove, caused or permitted a vehicle with a false license plate to be driven (January 2021);[102]
(u)using an unlicensed vehicle (January 2021);[103]
(v)unlawfully possessed or controlled a prescription drug (twice in January 2021);[104]
(w)possessing a prohibited drug (Drug B) (January 2021); [105] and
(x)possessing a prohibited drug (Drug A) (January 2021).[106]
[97] Ibid electronic page 61 of 575.
[98] Ibid electronic page 68 of 575.
[99] Ibid electronic pages 68-69 of 575.
[100] Ibid electronic page 70 of 575.
[101] Ibid electronic page 72 of 575.
[102] Ibid electronic page 79 of 575.
[103] Ibid.
[104] Ibid electronic pages 74-76 of 575.
[105] Ibid electronic page 77 of 575.
[106] Ibid electronic page 75 of 575.
71 When the paternal grandfather started proceedings in November 2018, he believed that the father was in custody, and recorded the father's address as care of [Prison A].[107]
[107] Exhibit 4, ''Case Information Affidavit filed by the Applicant paternal grandfather on 21 November 2018'' (''Exhibit 4''), electronic page 2 of 10.
72 The paternal grandfather said that he last saw the father in person at Christmas in 2022, and he believes that the father uses drugs on and off. The paternal grandfather said that the father avoids him if the father is on drugs. The paternal grandfather said that he last spoke to the father around two weeks earlier [late January 2024]. The paternal grandfather said that the father has been living in Perth, in his own premises, since October or November 2023, and has no current criminal charges pending. The paternal grandfather speaks to the father every month or two.[108]
[108] Transcript, Paternal Grandfather, 12 February 2024, 2 line 30 to 3 line 25.
73 The paternal grandfather said that the father was living in the paternal grandfather's Perth home [in [Suburb A]] from his birthday in [early] 2023, until October or November 2023.[109]
[109] Ibid 3 lines 35-40.
74 The paternal grandfather was cross-examined about a Western Australia Police incident report regarding events at his Perth home on 6 November 2023. Prior to being cross-examined about this incident report, the paternal grandfather said that he was aware that there had been a forced entry to his Perth home that night, and he received a telephone call from one of his sisters, who lives in the home, to advise him of this.[110]
[110] Ibid 5 lines 30-45.
75 According to the incident report, in the early hours of the morning on 6 November 2023, the front door of the paternal grandfather's Perth home had been kicked in. Police received an emergency call at 2:48am and dispatched officers at 2:55am, who arrived at the scene at 3:15am, and the job was closed at 4:07am. The incident report states, at 3:33am:[111]
Suspect has kicked front door in and entered the house, then kicked the master bedroom door in. Suspect is known to occupants. A friend of [the father]. [The father] called suspect after the incident who told him that he kicked the door in because he didn't answer his call and heard someone inside. He then entered and kicked in [the father's] bedroom door. Suspect departed on escooter, witnessed by [redacted].
(As per original)
[111] Exhibit 1, electronic page 263 of 575.
76 At 3:36am, the incident report records:[112]
Suspect known to use [Drug B] and has psychosis related mental health issues.
(As per original)
[112] Ibid.
77 The Court is satisfied that the forced entry to the paternal grandfather's Perth home on 6 November 2023 would have been frightening to the occupants and was connected to the father and his associates.
78 The father's most recent convictions in January 2021 (for unlawful possession of a controlled or prescription drug, and possession of Drug B and Drug A), the paternal grandfather's oral evidence about the father, together with the circumstances of the forced entry into the paternal grandfather's Perth home, satisfy the Court that the father is likely still using illicit drugs, at least sporadically, which is likely to render his behaviour unpredictable, and he likely associates with persons who also use illicit drugs.
79 Apart from the drug-related offences committed by the father between November 2016 and January 2021, the father's offending includes flagrant challenges to the law's authority (breaches of conditional release order, breaches of bail conditions or undertakings, escaping lawful custody, and as a driver, failing to stop in circumstances of aggravation), as well as a conviction for violence.
80 The statement of material facts in relation to the violent offence (aggravated assault occasioning bodily harm) committed on 22 January 2018 records, in part:[113]
[113] Exhibit 1, electronic page 57 of 575.
Between 2:00pm and 2:30pm on Monday 22nd January 2018, the accused [the father] was at [redacted] [City B].
The accused was in company with the victim, a mutual female friend and her two children aged one and two.
The accused became agitated with the victim over jealousy issues and started yelling.
The accused followed the victim into the rear year and swung a punch at the her [sic]. The victim ducked the punch and fell backwards on the back lawn.
The accused approached the victim who was still on the lawn and place[d] one of his hands around the victim's neck to pin her to the ground. The two young children were present in the rear yard when the victim was assaulted.
The accused took hold of the victim's arms and picked her up off the ground, causing bruising to her forearms. The accused carried the victim to the bedroom.
The victim entered the en suite and called Police (via 000).
The accused pushed the bathroom door off the hinges causing the door to fall on top of the victim before he entered the bathroom and repeatedly punched the victim over her body an unknown number of times.
The accused picked the victim up off the bathroom floor and put her back on the bed where he abused and threatened her.
The police arrived at the residence and placed the accused under arrest.
The accused voluntarily participated in an electronic record of interview with police during which time he denied the offence.
The accused was charged with the offence.
**The victim in this matter is 29 years old. 166cms in height and is of medium build. The accused is 27 years old, 178cms in height and is also of medium build. The victim and accused met approximately one week prior to this incident and had sexual intercourse. **
(As per original)
81 The father was charged, but not convicted, of an alleged assault occasioning bodily harm:
(1)against a female person, alleged to have occurred on 25 February 2017;[114] and
(2)against a male person, on 1 May 2017.[115]
[114] Exhibit 1, electronic pages 42-44 of 575.
[115] Ibid electronic pages 50-52 of 575.
82 The father committed the offences in April 2018 for which he was convicted at the paternal grandfather's Perth home.[116]
Family Violence Restraining Orders obtained prior to the paternal grandfather's application
Family Violence Restraining Orders between the mother and the father
[116] Ibid electronic pages 59-63 of 575.
83 On 1 August 2016, the mother obtained an interim Family Violence Restraining Order against the father. The order was made final on 2 September 2016. The final order remained in force for two years from 3 August 2016 [until 4 August 2018]. The interim and final order extended to include the child as a protected person. The father did not oppose the interim order being made final.[117]
[117] Mother's Trial Affidavit, [27]-[28] and Annexure ''SC-3'', electronic pages 82-86 of 186.
84 In July 2018, the mother (and, in practical effect, the child) applied to extend the operation of the final restraining order against the father (''the extension application''). The father opposed the extension application. The operation of the restraining order continued in force, pending the determination of the extension application.[118]
[118] Ibid [29]-[30].
85 The interim order that was made final on 2 September 2016 provided as follows:[119]
[119] Ibid Annexure ''SC-3'', electronic pages 82-86 of 186.
PART A: ORDERS. EXCEPT AS SET OUT IN PART B YOU MUST NOT:
be in possession of a firearm, a firearms license or obtain a firearms license,
cause or attempt to cause damage to any property in the possession of the Person Protected,
behave in an intimidatory, offensive or emotionally abusive manner towards the Person Protected,
behave in a manner towards the Person Protected that is likely to lead to a breach of the peace,
except as set out in Part B communicate or attempt to communicate with the Person Protected by any means whatsoever including SMS or text messages or any other electronic means,
post or cause to be posted on any social networking site (such as Facebook, Twitter and including any Blog) any message or image that depicts or refers in any way to the Person Protected,
enter, remain upon or loiter near any premises where the Person Protected lives, works or is educated or be within 50 metres of the nearest external boundary of those premises,
approach within 10 metres of the Person Protected,
approach or remain within 10 metres of any property (including vehicles) of, or under the control of the Person Protected,
cause or allow any other person to engage in conduct of the type referred to in any of the preceding paragraphs of this order on your behalf.
PART B. YOU WILL NOT BREACH THE ORDERS IN PART A IF YOU:
communicate with the Person Protected through an Australian legal practitioner as defined in the Legal Profession Act 2008 or a person acting under section 48 of the Aboriginal Affairs Planning Authority Act 1972,
comply with a court order or parenting plan, made under the Family Law Act 1975 and Family Court Act 1997, allowing you to live with, spend time with, or communicate with a child or children named in that order of the plan,
participate with the Person Protected in family dispute resolution or family counselling as defined in the Family Law Act 1975 and Family Court Act 1997,
instruct a process server or bailiff or other person to serve and legal process requiring service on the Person Protected,
participate in and attend court events in proceedings in which the Person Protected and you are parties or witnesses and to comply with any order or direction of a Court,
engage in any mediation as directed ort ordered by a Court or other mediation as agreed in writing by the parties and as arranged by a mutually agreed third party.
PART C. ADDITIONAL ORDERS
This order is extended to operate for the benefit of [the child] as if that person were the Person Protected by this order.
(As per original)
Family Violence Restraining Order between the mother and Mr B
86 The mother obtained a Family Violence Restraining Order against Mr B in January 2016, for twelve months, following the incident described by the mother in her Form 4. After that incident, the mother and the father did not attend at the home of the paternal grandfather and Ms F, because Mr B was living there.[120]
Family Violence Restraining Order between the mother and the paternal grandfather
[120] Exhibit 6, Part G, electronic page 6 of 11 [10]-[12].
87 The mother obtained an (ex parte) interim Family Violence Restraining Order against the paternal grandfather on 17 January 2017. This was resolved by an undertaking signed by both parties in July 2017.[121]
[121] Mother's Trial Affidavit, [32]-[34].
88 The mother agreed to withdraw her application on the basis that the paternal grandfather provide a written undertaking, for a period of two years, on a without admission of liability basis, and with no order as to costs. The undertaking expired in July 2019.
89 The undertaking otherwise provided as follows:[122]
[122] Paternal Grandfather's Trial Affidavit, Annexure ''C'', electronic pages 28-30 of 68.
PART A: THE PERSON BOUND MUST NOT:
a.behave in an intimidatory, offensive or emotionally abusive manner towards the person protected;
b.cause or attempt to cause damage to any property of the person bound in the possession of the person protected;
c.behave in a manner towards the person protected that is likely to lead to a breach of the peace;
d.except as set out in Part B communicate or attempt to communicate with the person protected by any means whatsoever including SMS or text messages or any other electronic means;
e.enter, remain upon or loiter near any premises where the person protected lives or works or is educated or be within 50 metres of the nearest external boundary of those premises;
f.approach within 20 metres of the person protected;
g.approach within 20 metres of any property (including vehicles) of, or under the control of, the person protected; or
h.cause or allow any other person to engage in the conduct of the type referred to in any of the preceding paragraphs of this undertaking for the person bound.
PART B: THIS UNDERTAKING WILL NOT BE BREACHED IF THE PERSON BOUND:
a.communicates with the person protected through an Australian legal practitioner as defined in the Legal Profession Act 2008 (WA) or a person acting under Section 48 of the Aboriginal Affairs Planning Authority Act 1972 (WA);
b.instructs a process server or bailiff or other person to serve any legal process requiring service on the person protected;
c.participates with the person protected in family dispute resolution or family counselling, as defined in the Family Court Act 1997 (WA) and Family Law Act 1975 (Cth);
d.communicates with the person protected by email only in relation to spending time with [the child] born [redacted] 2014;
e.complies with a court order made under the Family Court Act 1997 (WA) and Family Law Act 1975 (Cth) allowing the person bound to live with, spend time with or communicate with a child or children named in that order or with any ''Family Order'' as defined in the Restraining Orders Act 1997 (WA); or
f.participates in and goes to court events in proceedings in which the person protected and the person bound are parties or witnesses, and complies with an order or direction of a court.
(As per original)
Circumstances giving rise to the paternal grandfather's application
90 The mother started living with the father at the paternal grandfather's Perth home in around September 2012. At this time, both the mother and the father were using illicit drugs. The paternal grandfather encouraged the father and the mother to move to City A and live with him and Ms F, to escape the drug culture in Perth.[123]
[123] Mother's Trial Affidavit, [77]-[78] and [90].
91 The father and the mother settled in City A in January 2013, and lived with the paternal grandfather and Ms F until around March 2014. During this time, the paternal grandfather gave the father money to purchase Drug A.[124]
[124] Ibid [94]-[95] and [108].
92 While her relationship with the father was intact, the mother had an amicable relationship with the paternal grandfather and maintained a close relationship with Ms F. Ms F was diagnosed with cancer in mid‑2015 and passed away in November 2016.[125] The mother admired Ms F's sisters, especially Ms C. She felt welcomed into the family and loved them very much.
[125] Transcript of the re-examination of the paternal grandfather (13 February 2024) 2 lines 35-40 (''Transcript, Paternal Grandfather's Re-examination, 13 February 2024''); Paternal Grandfather's Trial Affidavit, [97].
93 In mid-June 2016, the mother and the father moved back to Perth, to care for Ms F while she was having chemotherapy. The paternal grandfather remained in City A for work.[126]
[126] Mother's Trial Affidavit, [237].
94 The Court has earlier recounted the mother's evidence from her Form 4. On the day of separation, Ms F and Ms C told the mother that she had to leave the father, for her own and the child's safety. Ms C drove the mother to a home belonging to one of the mother's friends. From her friend's home, the mother arranged to be collected by her parents. Ms C did not take the mother to her parents' address, because the mother did not want that address to be accidentally disclosed to the father or other paternal family members.[127]
[127] Ibid [290].
95 The mother's relationship with the paternal grandfather developed into a good relationship, after the child's birth. In the period prior to separation, the paternal grandfather and Ms F developed a strong relationship with the child. The child referred to the paternal grandfather as ''[Moniker for Mr Quinn]''.
96 After separation, the mother continued to facilitate and encourage the relationship between the child and the paternal grandfather, until 11 September 2016.[128]
[128] Exhibit 1, electronic pages 330-367 of 575.
97 On 2 August 2016, the paternal grandfather sent a text message to the mother asking whether the father could please speak to the child on the paternal grandfather's phone. He then texted asking the mother to ring his phone, so that the child could speak to the father. He then texted asking to FaceTime the child, so that he and the father could speak to child.[129]
[129] Ibid electronic page 341 of 575.
98 On 4 August 2016, the paternal grandfather sent a Facebook message to the mother, expressing sadness and disappointment that she felt she had to leave and decided not to come back. The paternal grandfather said that he wished the mother had not included the child in the Family Violence Restraining Order ''as we would always protect him with our life''. The paternal grandfather continued:[130]
As it stands we cannot get him [the child] as [Mr A][the father] will be around us and the [Family Violence Restraining Order] prevents him [the father] from seeing him [the child] at all.
(As per original)
[130] Ibid electronic page 331 of 575.
99 The mother sent a lengthy Facebook message in response to the paternal grandfather, in the following terms:[131]
'Sorry I fell asleep early last night. I got a [Family Violence Restraining Order] because with the stuff [the father] was doing I was scared for my safety he was holding knifes [sic] at me saying he was going to kill me and stuff all in front of [the child]. He gripped me by the throat and pushed me down. This was just for looking at him funny. When I was in cort [sic] they ask lots of questions about if [the child] saw the things that he [the father] was doing. I said yes because poor [the child] did see it all. [S]ince he threatened so much to take [the child] away from me so I could never see him again they actually without me asking put [the child] on it [the Family Violence Restraining Order] for he's [sic] own safety. [I]t's very rare they put children on them so that shows how serious it is what he [the father] was doing. [The father] so many times put [the child] in he's [sic] car trying to take of [sic] with him when he was high on [Drug B]. Even to know things are over with [the father] and I really want [the child] and him to have a good relationship in the futcher [sic] he just needs to make sure he's not on drugs for that to happen so I know [the child] will be safe. The [Family Violence Restraining Order] is for him [the father] and not you guys you guys can still see [the child] if you want to. Even [Ms F] and [Ms C] told me after seeing what he [the father] was doing to me on the night I left if I stayed I was going to get bashed or killed. Unfortunately this was going on for a lot longer then [sic] you guys realise if he was hanging for [Drug C] I would get threats and be called every name under the sun and then when we were down in Perth and he started using [drugs] again it just went extreme and there isn't any coming back from that. I'm so sorry that I had to go to this length but you know how much I love [the child] and I will do anything to make sure he is safe and happy. [Y]ou guys are awesome loving grandparents to [the child] and I would never stop you guys from seeing him.
(As per original)
[131] Ibid electronic page 333-334 of 575.
100 On 5 August 2016, the paternal grandfather texted the mother, stating that the father was upset and wanted to see the child, and that the father:[132]
…has not been on anything over the last week that I can tell, but we will just have to wait and see what you and the courts decide I suppose, I would of like to supervise a visit for a couple of hours but I'm not sure if you can organise that? At this stage.
(As per original)
[132] Ibid electronic page 344 of 575.
101 The mother (and her father) met with the paternal grandfather (and Child B) so that the paternal grandfather could give the mother a bag of her possessions from the paternal grandfather's Perth home, on 5 August 2016. The paternal grandfather saw the child briefly on this occasion.[133]
[133] Mother's Trial Affidavit, [320]; Paternal Grandfather's Trial Affidavit, [84].
102 On 5 August 2016, the mother sent a further long text message to the paternal grandfather, explaining why she obtained the Family Violence Restraining Order.[134]
[134] Exhibit 1, electronic pages 348-349 of 575.
103 On 12 August 2016, the mother texted the paternal grandfather, asking whether he wanted to catch up to see the child. Included in the paternal grandfather's response was the following proposal:[135]
What's your thoughts on me grabbing [the child] for [a] couple of hours supervised visit with [the father], I promise I will bring him back???
(As per original)
[135] Ibid electronic pages 351-352 of 575.
104 The mother responded with another long text message, explaining why this could not occur.[136]
[136] Ibid electronic pages 353-354 of 575.
105 On 11 September 2016, the mother offered make the child available to see the paternal grandfather, Ms F and Child B at [Park A]. The visit proceeded, with Ms F in a wheelchair due to her advanced illness. The Court accepts the evidence of Ms X, that she drove the mother and the child to the visit at Park A and recalls that they were both anxious on the drive there, and after leaving the venue.
106 The following day, the paternal grandfather texted the mother, and stated:[137]
…I just wish I could get [the father] to see him [the child], he [the father] is soo [sic] lost without even seeing him [the child], I reckon a visit would hel[p] [m]e get him back to [Moniker for City A] [City A]…I know I [am] not supposed to message these things but it soo [sic] hard for us to see him like this, take care speak soon.
(As per original)
[137] Ibid electronic page 363 of 575.
107 The Court accepts the mother's evidence that she did not feel safe facilitating more visits after 12 September 2016. The mother was understandably concerned that the paternal grandfather was continuing to try and facilitate contact between the child and the father, even though he was aware of the Family Violence Restraining Order protecting both the mother and the child, and that the father was using drugs, and had recently behaved violently towards the mother and the child. The Court accepts the mother's submission that the paternal grandfather was prioritising the father's needs to see the child, over the child's safety, in particular as a mechanism for the paternal grandfather to persuade the father to move to City A.
108 During this period, the mother was also attempting to recover some of hers and the child's personal possessions from the City A home, through the paternal grandfather, advising him that she would be escorted by the police, ''so I don't break my side of the restraining order''.[138] In a response to a text message from the mother on 19 September 2016, the paternal grandfather responded on the same day, and stated that he had not yet obtained the father's consent to accessing the house to collect the mother's personal possessions, but felt that the father might feel differently if he got to see the child:[139]
…I think he [the father] would be different in his thinking if he got to see [the child] it's been 10 weeks now and he just keeps saying he needs to see his son.
(As per original)
[138] Ibid electronic page 363-364 of 575.
[139] Ibid electronic page 365 of 575.
109 On 7 October 2016, the mother's solicitors, Legal Aid Western Australia (''Legal Aid WA''), wrote to the father, as part of Legal Aid's Minor Assistance Programme, identifying specific belongings of the mother and the child then in possession of the father at their City A home.[140] The letter records that the mother had taken her name off the lease, no longer had key access to the property, and had been unable to access the property since separation. The mother requested key access so that she could attend the property, in the company of the police, and recover the property described in the letter.[141]
[140] Mother's Trial Affidavit, Annexure ''SC-3'', electronic pages 104-105 of 575 (at Attachment ''G'')
[141] Ibid electronic page 105 of 186.
110 On 19 October 2016, the paternal grandfather texted the mother, and invited her to nominate a time to travel to City A to pick up her belongings.[142] The mother did not respond, being concerned that the paternal grandfather would pressure her to let the father see the child, and otherwise refuse her access to the property.[143]
[142] Exhibit 1, electronic page 366 of 575.
[143] Mother's Trial Affidavit, [365]-[366].
111 In an email sent to the mother's solicitors at Legal Aid WA on 28 October 2016, the paternal grandfather stated that ''this total ignorance of my attempts to see my grandson will impact and decide if and when [the mother] gets her belongings''. The paternal grandfather stated that he needed to see the child, because the child's grandmother was ''very, very ill'' and would like to see him.[144]
[144] Ibid [268]; Paternal Grandfather's Trial Affidavit, Annexure ''B'', electronic page 27 of 68.
112 On 28 October 2016, the paternal grandfather asked whether the mother would:[145]
[186] Exhibit 1, electronic page 288 of 575.
136 Nothing in the evidence given by the Single Expert Witness, Mr U, mitigated or discounted the significant weight which the Court attaches to the evidence of Ms Z.
137 Ms Z made the following recommendations:[187]
It is my recommendation that family therapy is discontinued. Despite the preparatory sessions and EMDR, the mother did not cope with the process. This manifested as excessive hypervigilance when she attended sessions and ongoing trauma symptoms between sessions. I am by no means blaming the mother, she experienced serious abuse from [the father] and her trauma is chronic and embedded. I do not believe that her symptoms have (or will) lift sufficiently for this process to progress. This is unfortunate because the paternal grandfather struck me as a gentle, calm and patient man. However, the mother does not see him in this light, rather she is unable to separate him from [the father] and effectively perceives him through the same lens of fear and anger. This was very apparent when she relayed her thoughts to him concerning his 'lack of protectiveness' when she was with [the father]. I do not believe her attitude will shift. It is my opinion, that given her psychological functioning, she did not and will not be able to cope with reunification.
It might be possible to set up a system for the [paternal] grandfather to send birthday and Christmas cards or occasional letters as this will allow [the child] to know that he has a paternal grandfather who is out there and interested in him. This would have to be done by managing the mother's safety concerns and perhaps spaced at least a week before a special occasion to avoid tainting the event by triggering a reaction in the mother. Orders should also allow for contact subject to [the child's] wishes from 16 years old. It is essentially important that children with indigenous heritage have some options for connecting to their culture, kin and identity.
(As per original)
[187] Ibid electronic page 291 of 575.
138 Under cross‑examination, Ms Z was satisfied that the mother was not moving forward and would not be assisted by therapy. According to Ms Z:
1.The mother was ''stuck in 2016'', her trauma was genuine, and she had genuinely tried during the family therapy process.
2.While the mother's trauma relates to the father, the paternal grandfather and other family members were there at the time of the trauma, and trauma can generalise.
3.Because trauma deals with the reality of perceptions, the paternal grandfather doing everything he can and apologising will not make any difference, because the mother will not believe the apology.
4.The mother was paranoid. Her parents attended and remained outside family therapy for one of the sessions. The mother's suspicion or paranoia would not be alleviated by misleading or incomplete information from the paternal grandfather, including the whereabouts of the father.
139 Ms Z is experienced with Aboriginal cultures from both her personal and professional experience. Professionally, she has dealt with Aboriginal adults in the prison system. She maintained the evidence given in her report, that children with indigenous heritage should be provided with some options for connecting to their culture, kin and identity. According to Ms Z, there cannot be a meeting between the paternal grandfather and the child, if the mother is ''not okay''. The welfare of the mother and the child cannot be separated when considering this option.
140 Based upon the evidence of Ms Z, the Court is satisfied that that the mother cannot pick and choose when trauma symptoms manifest. If the child sees the mother in distress, this will negatively impact the child. The impact of the mother's trauma symptoms on the child is a real risk requiring consideration.
141 The mother first consulted her counsellor, Ms AB (''Ms AB''), from September 2022 until March 2023, and again from September 2023. Ms AB holds a [tertiary qualification in counselling] and has completed advanced training in EMDR therapy.[188]
[188] Affidavit of Ms AB affirmed on 5 January 2024, Annexure ''A'', electronic pages 6-16 of 16 (''[Ms AB's] Report'').
142 Ms AB described EMDR therapy in the following terms in her report:[189]
EMDR is a specialized form of therapy designed to aid individuals in mitigating the emotional distress and negative feelings associated with traumatic experiences. This therapeutic approach focuses on addressing the impact of traumatic memories, both in terms of their historical influence and their ongoing effects on present‑day functioning. EMDR aims to facilitate the adaptive processing of these memories, thereby enhancing an individual's coping mechanisms with the aim of promoting improved emotional well-being.
(As per original)
[189] Ibid electronic page 11 of 16 [8].
143 A further four sessions, including two EMDR sessions, took place after the mother re-engaged with Ms AB in September 2023, following the mother's trauma resurfacing after reading Court documents for trial, including details of the father's material facts associated with his criminal offending. In a counselling session on 8 November 2023, based upon a recent interview with the Single Expert Witness, the mother expressed anxiety that he was trying to find out her location in the Eastern States.[190]
[190] For the purpose of preparing his second report, Mr U interviewed the mother for 59 minutes on 6 November 2023; see the Second Single Expert Witness Report, [3].
144 Ms AB opined that the mother's mental health had appeared to deteriorate on approach to trial, manifested by increased anxiety. There is the potential for the mother to destabilise. The mother was concerned, anxious and not validated by attending on the Single Expert Witness. The child also became anxious and behaved out of character after attending most recently on the Single Expert Witness.
145 The mother's trauma, based upon the evidence of Ms Z and Ms AB, is unresolved, pervasive and recurrent.
146 The Single Expert Witness, Mr U, in his oral evidence‑in‑chief, indicated that he had changed his opinion about the likelihood of success of his previous recommendations, based upon the mother's most recent affidavit evidence, and the affidavit of her counsellor, Ms AB. He stated that, if implemented, his prior recommendations would cause a traumatic impact on the mother. Mr U stated that he did not see the mother's capacity to move her historical trauma ''onto a smaller screen''.[191]
The child's cultural risk
[191] Transcript of the examination-in-chief of the Single Expert Witness (14 February 2024) 3 lines 40-45 (''Transcript, Examination of the Single Expert Witness, 14 February 2024'').
147 The mother has made genuine efforts to expose the child to indigenous culture and heritage. An indigenous man, ''[Mr AE]'', had provided some teachings to child.[192] The mother's friend, Ms AA (''Ms AA''), has also provided such teachings to the child. Ms AA was quite candid that what she could provide the child was no substitute for direct engagement between the child and his indigenous family. The mother acknowledges that the child would benefit from direct knowledge of his paternal family, and engagement with his specific indigenous background. However, she qualified this benefit as being subject to the child's safety.
[192] Mother's Trial Affidavit, [488]-[504].
148 When interviewed by the Mr U in November 2023, and asked what he knew about Aboriginal culture, the child said he learned about bush remedies. When asked by Mr U whether he would like to learn more about Aboriginal culture by the paternal grandfather giving him information on it, the child said, ''I'd sort of be open to it, but a little bit nervous''. The child was not interested in having face‑to‑face contact but said that video calls would be ''ok''. The child also said that he would be ''ok'' with receiving a photograph of the paternal grandfather, but not the father. Mr U asked the child what the mother says about the paternal grandfather. The child responded that ''[a]ll she says about him is that [the paternal grandfather] is being manipulative, like [the father] and stuff. Like tricking us''.[193]
[193] Second Single Expert Witness Report, [98]-[100].
149 The Court accepts that the child's mental health outcomes are likely to be negatively impacted if he does not have the opportunity for some form of engagement with his paternal indigenous family and culture. Equally, the Court accepts that the child's mental health outcomes are likely to be negatively impacted if any orders made to achieve this goal escalate and heighten the mother's trauma, which is likely to have an adverse impact on her parenting capacity, and therefore on the child.
Consideration
150 Any orders that the Court makes must not unreasonably increase the possibility that the existing Family Violence Restraining Order may be breached by the father.[194] The Court's orders must also take into account the mother's trauma associated with her relationship with the father and be framed in such a manner which does not heighten or escalate that trauma.
[194] Family Court Act 1997 (WA), s 66G.
151 The Court takes into account the father's extensive criminal record. The father has two convictions for breaching a restraining order made for the benefit of the mother. The father has been violent to the mother, and since separation has been convicted of committing a violent offence against another female acquaintance. The father has threatened to kill the mother and take the child away from her.
152 In 2021, the father was convicted of possessing Drug A and Drug B. The paternal grandfather says that the father has been ''on and off'' drugs, including in 2023. The Court is satisfied that the father's behaviour is erratic and unpredictable when he is under the influence of illicit drugs. The Single Expert Witness, Mr U, observed that the father appears to have continued on his destructive path. The paternal grandfather admitted to Mr U that dealing with a drug-addicted son is ''out of his league''.[195]
[195] Transcript of the cross-examination of the Single Expert Witness (14 February 2024) 17 lines 20-25 (''Transcript, Single Expert Witness, 14 February 2024'').
153 The paternal grandfather's view is that the father must not be around his family when he is on drugs. Mr U questions the effectiveness of what the paternal grandfather says to the father. Mr U considered that the paternal grandfather would follow the Court's orders to the best of his ability but said that the question is whether his adult sons, especially the father, would do so.
154 During the relationship between the mother and the father, the paternal grandfather gave the father money, which he knew the father would use to buy Drug A. The paternal grandfather provided this money to the father, over the objections of the mother. The mother lacks trust and confidence in the paternal grandfather's capacity to protect the child from the father. The mother's most recent direct experience of the paternal grandfather, after separation, were his attempts to persuade her to permit contact between the child and the father, despite the restraining order protecting the mother and the child from the father, and despite the mother providing the paternal grandfather with a detailed explanation as to why she obtained the restraining order.
155 The mother considers that the paternal grandfather's response in family therapy to her trauma being ''old news'' simply reveals his lack of understanding of the impact that the father has had, and continues to have, upon her, and she considers that the paternal grandfather would wish to restore contact or communication between the child and the father.
156 Given the mother's experience with the paternal grandfather, and on the basis of the available evidence, the mother's concerns about the child being exposed to the father are not unreasonable.
Other additional considerations
157 Relevant additional considerations have been discussed earlier in these reasons.
158 When the child was interviewed by Mr U in April 2020, he seemed confused about whether the paternal grandfather was alive or not. The child believed that the paternal grandfather had died but was not sure why. He was clear that the paternal grandmother had passed away and that she had been a kind and nice person. The child was not sure what sort of person the paternal grandfather was.[196]
[196] First Single Expert Witness Report, [91].
159 In November 2023, Mr U interviewed the child again. The child knew who the paternal grandfather was and referred to him as ''[Mr Quinn's first name]''. The child told Mr U that he and his mother had moved to the Eastern States to meet new family members, and that his mother cares for a grandmother. The child said that the best things in his life were going to church, because he and his mother ''celebrated the Lord''. The next best thing was playing with cousins who live in the area.[197]
[197] Second Single Expert Witness Report, [96] and [101]-[102].
160 The Court must take into account the child's right to enjoy his Aboriginal culture, including the right to enjoy that culture with other people who share that culture, and the likely impact that any proposed parenting order will have on that right.[198] An Aboriginal child's right to enjoy his Aboriginal culture includes the right to maintain a connection with that culture, and to have the support, opportunity and encouragement necessary to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views, and to develop a positive appreciation of that culture.[199]
[198] Family Court Act 1997 (WA) s 66C(3)(h).
[199] Ibid s 66C(7).
161 Final orders are sought by each party and the Independent Children's Lawyer.
Discussion and disposition
162 The Court agrees with the parties and the Independent Children's Lawyer that it is preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to a child.
163 Orders will be made in terms of those agreed between the parties. The Court now considers orders sought by the mother, where the paternal grandfather did not seek to be heard (Points (A) and (B) below) and areas of active disagreement between them (Points (C), (D), (E) and (F) below).
164 In resolving the disputes over particular orders between the parties, the Court prefers to adopt the mother's proposals, because as a victim of domestic violence experiencing trauma, the mother will likely experience less trauma by implementing an order to which she consents.
(A) Parental responsibility
165 The presumption of equal shared parental responsibility is rebutted, because the father has engaged in family violence against the mother.[200] Given the father's lack of engagement with the child since separation in July 2016, the Court is otherwise satisfied by the evidence that it would not be in the best interests of the child for the mother and the father to have equal shared parental responsibility.[201]
[200] Ibid s 70A(2)(b).
[201] Ibid s 70A(4).
166 The child's best interests are served by an order for the mother to have sole parental responsibility for the child.
(B) Removal of the child from Australia and the child's passport
167 As the parent with whom the child lives and has sole parental responsibility, the Court is satisfied that the mother should be permitted to remove the child from Australia for the purposes of holidays. Further, subject to any other requirements of the Department of Foreign Affairs and Trade (or any other necessary Commonwealth Department), the father's consent to the issue of an Australian passport for the child should be dispensed with, and the Department of Foreign Affairs and Trade (or any other necessary Commonwealth Department) be requested to issue an Australian passport for the child.
(C) Photographic evidence of receipt of the photo book
168 Given the entirety of the orders agreed between the parties, the Court does not propose to order the mother to provide a photograph of the child reading the photo book. The Court is satisfied that the mother will comply with the orders, because she considers the orders to be in the child's best interests.
(D) Frequency of video calls
169 The paternal grandfather seeks that after six months from the making of the orders, the child communicate with him by video call or other electronic means on one occasion per month, moving to once per fortnight after a period of three months, and continuing thereafter. The mother seeks that after three months of sending letters and cards pursuant to the orders, the paternal grandfather communicate with the child by video call once every two months on the last Sunday of each month, with the mother (or a third party) to encourage and facilitate the video calls.
170 The Court prefers the mother's proposal and considers that neither the mother nor the child should experience the feeling of being ''flooded'' by communications from the paternal grandfather.
(E) Who may be present during video and/or telephone calls
171 The Court accepts the evidence of Ms Z, that the mother must be able to exercise some degree of control over any process of communication with the paternal grandfather or the paternal family, to properly manage her trauma. In these circumstances, the paternal grandfather is to ensure that there is no one else present during his telephone or video calls with the child, save and except with the prior written consent of the mother.
(F) Face-to-face contact
172 The paternal grandfather applies for a suite of face-to-face spend‑time orders with the child, to effectively commence when the child is 12 years of age, and on a progressively increasing basis. In the Court's assessment, pursuant to these orders, the relationship between the child and the paternal grandfather will develop in an organic matter. The Court intends to make orders in the child's best interests, which will facilitate the child spending face-to-face time with the paternal grandfather if he wishes to do so but will not compel him to spend face‑to-face time if he does not wish to do so, from 15 years of age. The Court relies upon the evidence of Ms Z and Mr U in this respect, to fix an age at which the child is forming some independence of mind.
Proposed orders
173 For these reasons, subject to hearing from counsel as to form, the Court intends to make the following orders:
Parental responsibility
1.The Respondent, MS CLARKE, have sole parental responsibility for the child, CHILD A, born [in] January 2014 (''the child'').
2.The child live with the Respondent.
Communication between the parties
3.The parties communicate by email about issues regarding these Orders.
4.Within seven (7) days of the date of these Orders, the parties notify each other and thereafter keep each other notified of their current email addresses, postal addresses with capacity to receive cards, gifts and letters and their current mobile phone numbers.
5.The Applicant, MR QUINN, is restrained by injunction and an injunction is hereby granted restraining the Applicant from sharing the Respondent's postal address, email address or telephone number with any third party without the Respondent's prior written consent.
6.Within fourteen (14) days of the date of these Orders:
(a) the Applicant provide Ms C with the Respondent's email address along with a request that Ms C not disclose the email address to any other person; and
(b) the Applicant provide the Respondent with the current email address for Ms C subject to her consent.
7.Commencing no later than three (3) months following the date of these Orders and on a three-monthly basis thereafter, the Respondent provide the Applicant by email a brief update on the child including an up-to-date photograph and, when they issue, a copy of the child's school report with any identifying information being redacted.
Photo book and family tree
8.Within twenty-one (21) days of the date of these Orders, the Applicant be at liberty to send the child a photo book containing photographs of the paternal family members, such photo book not to contain photographs of the child's father, MR A (''the father'').
9.By no earlier than twenty-one (21) days after the photo book is sent to the child, the Applicant be at liberty to send the child an initial letter along with a family tree with the Applicant at liberty to record the name of the father, but there is to be no photographs of the father.
Communication with the child
10.Commencing no later than three (3) months from the date of these Orders, the Applicant be at liberty to send the child gifts, letters and cards on a monthly basis and on special occasions such as the child's birthday, Christmas and Easter and the Respondent is to ensure that the gifts, cards and letters are given to the child.
11.In the event that the child expresses a request to respond to the communication from the Applicant pursuant to the previous paragraphs, the Respondent use her best endeavours to facilitate and encourage the child to continue to do so or request a third party to do so.
12.After three (3) months of sending letters and cards pursuant to the previous paragraphs, the Applicant communicate with the child via video call once every two months at a time on the last Sunday of each month between 5:00pm and 6:00pm Eastern Standard Time with the Respondent to encourage and facilitate the video calls between the Applicant and the child or request a third party to do so.
13.Commencing twelve (12) months from the date of these Orders and in addition to the communication pursuant to the preceding paragraph, the child communicate with the Applicant in accordance with his wishes and the Respondent use her best endeavours to facilitate and encourage this contact or request a third party to do so.
14.Commencing twelve (12) months from the date of these Orders, the Respondent ensure that the child has a personal mobile phone which contains the number of the Applicant and will provide the child's phone number to the Applicant and keep him updated in relation to the same.
15.The conditions of the above communication are as follows:
(a) the duration of the video or phone calls is to be informed by the child; and
(b) the Applicant be restrained by injunction and an injunction be hereby granted restraining the Applicant from:
(i)discussing the father;
(ii)taking any screenshots of any video calls or otherwise recording the video calls in any way;
(iii)sharing the child's phone number with any third party without the prior written consent of the Respondent;
(iv)asking the child any questions that would knowingly reveal his location; and/or
(v)the Applicant is to ensure that there is no one else present during any calls save and except with the prior written consent of the Respondent.
16.Upon the child turning fifteen (15) years of age, the Applicant spend time and communicate with the child in accordance with the child's wishes with the Respondent to use her best endeavours to facilitate any time or communication request expressed by the child.
17.To give effect to the preceding Orders, the Respondent will ensure that the child will be given his own phone and will provide the phone number to the Applicant and keep him updated in relation to the same.
Travel
18.The Respondent be at liberty to remove the child from the Commonwealth of Australia for the purposes of holidays.
19.Subject to any other requirements of the Department of Foreign Affairs and Trade, the father's consent to the issue of an Australian passport for the child be dispensed with and the Department of Foreign Affairs and Trade be requested to issue an Australian Passport for the child.
Injunctions
20.The Applicant be restrained by injunction and an injunction is hereby granted restraining the Applicant from sharing information about the child with the father or causing or allowing a third party to share this information.
21.Save and except with the prior written consent of the Respondent, the Applicant be restrained by injunction and an injunction is hereby granted restraining him from:
(a) posting any of the photographs of the child on social media;
(b) attending any educational institution that the child may attend including any before or after school care or any vacation care;
(c) bringing the child into contact with any of the following people:
(i) the father;
(ii) MR D born [in] 1988;
(iii) MR B born [in] 1986; and
(iv) MR E born [in] 1988.
Other
22.The Respondent be permitted to provide copies of these Orders to:
(a) any school that the child attends; and
(b) any medical, mental health practitioner that may assist the child from time to time.
23.The Respondent be at liberty to provide a copy of these Orders and the Reasons for the Decision to the Respondent's mental health practitioners.
Procedural
24.All previous parenting interim orders and application be hereby discharged.
25.Subject to any appeal process, the Independent Children's Lawyer be discharged.
26.The parties are granted liberty to apply in relation to the implementation of these Orders.
27.All documents produced by named persons pursuant to subpoena be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from this Order.
28.In relation to material tendered as an exhibit into evidence in these proceedings:
(a) all parties must collect their exhibits tendered by them (''their exhibits'') from the Chambers of the Honourable Justice Berry at least 42 days, and no later than 56 days, from the date of this Order;
(b) all parties must contact the Chambers of the Honourable Justice Berry 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.
29.All material tendered as an exhibit and uploaded electronically by the Court will be destroyed by the Court without notice to the parties on the expiration of 42 days from this Order.
30.In the event of an appeal being lodged prior to the expiration of 42 days from this Order, paragraphs 27, 28 and 29 above do not apply.
31.Any application for costs (including costs reserved) must be consolidated in a Form 2 Application with a supporting affidavit and filed and served within 28 days of this Order.
32.Subject to the preceding orders, the Form 1 Initiating Application filed by the Applicant on 21 November 2018 and the Form 1A Response filed by the Respondent on 9 May 2019, and all outstanding interim proceedings, be dismissed.
These reasons for decision are amended at paragraph 14, subparagraph 22 to include sub-subparagraphs (a) and (b) with reference to Exhibit 10.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
JW
Associate
3 APRIL
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