R and W

[2008] FCWA 19

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: R and W [2008] FCWA 19

CORAM: PENNY J

HEARD: 12 & 13 SEPTEMBER 2007

DELIVERED : 15 FEBRUARY 2008

FILE NO/S: PT 3437 of 2004

BETWEEN: R

Applicant/Father

AND

W
Respondent/Mother

Catchwords:

Children's issues - residence - change of circumstances - amendments to Family Court Act 1997 - not appropriate case for equal shared care - signficiant and substantial time with father ordered

Legislation:

Family Court Act 1997 - s66A, s 66CC, s 70A, s 89AA(1), s 89AA(3)

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr S Jones

Respondent: Mr H Moser

Solicitors:

Applicant: Gibson & Gibson

Respondent: K G Sorenson

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

Bolitho and Cohen (2005) FLC 93-224 at 79,692

Rice v Asplund (1979) FLC 90-752, stated at 78,905

1[Aaron R] and [Rebecca W] are the parents of [Carina], born on 16 March 1999. They separated when she was only 8 months old. [Carina] has lived with [Rebecca] since that time. She initially spent time with [Aaron] on an informal basis as agreed between the parties. Eventually, the time [Aaron] spent with her was determined by court orders, which were made by consent in July 2004.

2[Aaron] now seeks to increase the time [Carina] spends with him to each alternate week. [Rebecca] opposes the orders and says that there are no changed circumstances to warrant a review of the existing orders.

3I determined, prior to the hearing, that I would not deal with the issue of changed circumstances as a preliminary issue, but rather hear all of the evidence in relation to the parties’ proposals and determine the issue of changed circumstances in the context of that evidence.

Changed circumstances

4On 6 July 2004 [Aaron] filed a Form 1 and Form 2 application seeking orders in relation to the time he should spend with [Carina]. On 20 August 2004 the parties agreed that [Aaron] should have contact with [Carina] from Friday to Sunday each alternate weekend, half the school holidays and other significant days.

5On 4 April 2006 [Aaron] received a text message from a person known as [Kim]. The message informed [Aaron] that he was [Rebecca]’s ex-boyfriend and he was concerned about [Carina]’s welfare. He invited [Aaron] to telephone him to discuss the matter. When he spoke to [Kim] he was informed that there was extensive drug use occurring in [Rebecca]’s home, and that [Rebecca] had been using methamphetamines, marijuana, ecstasy and had been drinking alcohol to excess. He was informed that [Rebecca] had been selling drugs from her home and that [Carina] was suffering as a result of the effects of methamphetamine upon [Rebecca]. He was also told [Carina] had been exposed to violence. As a result of hearing this [Aaron] attended at [Carina]’s school on Thursday 6 April 2006 and removed her from the school. On 7 April 2006 [Rebecca] applied for a Recovery Order and was granted one on the same day. On the same day [Aaron] filed a Form 1 and a Form 2 application in which he sought orders that [Carina] reside with him and [Rebecca] have contact with her.

6On 28 April 2006, by consent, [Aaron]’s interim application seeking orders that [Carina] reside with him was dismissed and the matter was programmed for a conciliation conference. [Carina] had returned to reside with [Rebecca] and the parties reverted to the terms of the consent orders made in August 2004.

7In October 2006 [Aaron] proposed that he and [Rebecca] share the time they spend with [Carina], so that she spends week about in each household. [Rebecca]’s response was to agree that [Aaron] could spend time with [Carina] for one further day each alternate week so that the time he spent with [Carina] was from Friday until Monday morning each alternate week.

8[Kim] had provided an affidavit for [Aaron] for the interim proceedings. He did not give evidence at the trial. [Aaron] remained firm in his view that [Rebecca] was taking drugs in 2006 when he brought his application, but conceded that in recent times he did not believe she was taking drugs.

9[Rebecca], when she gave evidence, was cross-examined in relation to incidents which occurred during the period from January 2006 until 10 April 2006, when she was in the relationship with [Kim]. In giving this evidence she was referred to her diary entries for this period. In January 2006 in her diary she describes numerous arguments she had with [Kim]. For example, on 9, 10 and 11 January she described having “huge” fights with [Kim]. There are other arguments on 12, 16 and 17 January. During February they continued to argue and she decided later in that month that she would “fuck him off”. During March [Kim] came to her house on a number of occasions crying and begging to talk to her again. On 31 March 2006, [Kim] and a friend of hers, [Will], had a fight. The police came and [Kim] was arrested.

10On 10 April [Rebecca] obtained a Violence Restraining Order against [Kim]. This came about as a result of a physical fight with him. According to [Rebecca] he attempted to strangle her and she had a bruised throat after the incident. She says that [Carina] was not at home when this incident took place. After investigations the police did not charge [Kim]. During April, [Rebecca], at times, had friends staying at her home because she was scared that [Kim] would attend.

11[Rebecca] was questioned about [Kim]’s use of drugs and her own. She confirmed that on occasions she would use marijuana, but not recently. In relation to [Kim], she said that she suspected that he was using drugs because of his behaviour. She says that he was not using drugs around [Carina], but when they went to friends’ homes she suspected he took drugs. This evidence of [Rebecca]’s was in stark contrast with that of her friend, [Shona]. When [Shona] was cross-examined she stated that she had seen [Kim] use drugs in a social setting at a party. She said she only saw him do this once and it happened at [Rebecca]’s house. She stated that she believed the drug he was using was ice. She said she did not see it, but was told that he had used the drug.

12[Rebecca] initially stated that [Carina] was not exposed to the arguments between herself and [Kim]. She subsequently stated that she would have heard some of the arguments. She also stated that [Carina] had been frightened of [Kim] for some weeks before she finished the relationship and obtained the Violence Restraining Order.

13[Carina] had told [Mrs R], [Aaron]’s mother, she was frightened of one of [Rebecca]’s boyfriends, and told her they were “always shouting and screaming at each other”. At these times [Carina] stated that she did not want to go home.

14I am satisfied that [Kim] was a violent aggressive man who took drugs during the course of his relationship with [Rebecca], which made his conduct even worse. During the time she was in a relationship with him, [Carina] was exposed to violent and inappropriate conduct by [Kim]. Although there was no violence towards [Carina], she was aware of violence being perpetrated on her mother and saw the physical signs of it.

15As to the circumstances in which the Court will entertain an application for a change in the living arrangements for a child, the Full Court of the Family Court in Rice and Asplund (1979) FLC 90-752, stated at 78,905:

“The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J., there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material…”

16The Full Court in Bolitho and Cohen (2005) FLC 93-224 at 79,692 quoted, with approval, the decision of Collier J in King v Finneran (2001) FLC 93-079 when he stated as follows:

“50. … The change or fresh circumstance must be such that upon becoming advised of it and being satisfied of its existence, a court would be left in no doubt that it was necessary to relitigate the parenting issue in dispute between the parties. That is not to say that a court must be satisfied that the fresh or changed circumstance would result in a change to the orders. It merely indicates that the change or fresh circumstance must be such that if taken into account there is a real likelihood that a change may follow.”

17In my view, the abusive relationship which [Rebecca] had with [Kim], and the fact that [Carina] was exposed at the very least to his aggressive behaviours, is a serious matter and goes to the issue of whether [Rebecca] is able to provide an appropriate environment for [Carina]. In my view, changed circumstances have been established and, therefore, there is need to relitigate the issue of the time [Carina] spends with each or her parents.

The law

18The previous consent orders were made pursuant to the Family Court Act 1997 as it existed in August 2004. The orders made allowance for [Carina] to reside with [Rebecca] and for [Aaron] to have contact on certain days and at certain times. The provisions of the Family Court Act 1997 relating to the making of parenting orders have changed since 2004. This matter now must be considered in the legislative framework as existed at the date of trial. The relevant provisions of the Family Court Act 1997 are as follows.

19S 66A provides when deciding whether to make a particular parenting order in relation to a child, I must regard the best interests of the child as the paramount consideration. S 66C sets out primary and additional considerations I must take into account when determining what is in the child’s best interests.

20S 70A of the Family Court Act 1997 states that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child, except in cases of abuse and family violence.

21S 89AA(1) states that if a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child, the Court must consider whether the child spending equal time with each of the parents would be in the best interests of the child and whether spending equal time is reasonably practicable, and if it is, consider making an order to provide for the child to spend equal time with each parent.

22S 89AA(2) states that if there is an order for shared parental responsibility for the child and the Court does not make an order for equal time with each of the parents, the Court must consider whether the child spending substantial and significant time with each of the parties would be in the best interests of the child, and whether it is reasonably practicable, and if it is, to consider making such an order.

23As stated previously, [Aaron]’s position is that he seeks that [Carina] should live week about with he and [Rebecca]. He says his present domestic and work situation will allow for him to be mainly responsible for [Carina]’s care.

24[Rebecca]’s position is that [Carina] should continue spending the same time with [Aaron] as she has from last October, that is, from after school Friday to the commencement of school on Monday each alternate weekend, and for one half of the school holidays together with other special days.

25When determining this matter I must take into account the best interests of [Carina] as being my paramount consideration. In determining what is in [Carina]’s best interests I must consider the matters raised in s 66CC.

Primary considerations

26The primary considerations as set out in that section are the benefit to [Carina] of having a meaningful relationship with both of her parents and the need to protect her from physical or psychological harm or from being subjected to, or exposed to, abuse, neglect or family violence.

27[Carina] has a close and meaningful relationship with [Rebecca], with whom she has lived since she was born. According to [Rebecca], she does not have such a good relationship with [Aaron] and at times she does not want to go to see him. On a letter sent home from the school addressed “Dear Parents” [Carina] wrote “No Dad”. On another occasion at school [Carina] wrote “I hat [sic] my Dad” and “I do not lick [sic] my Dad”. In my view, given [Rebecca]’s attitude to [Aaron], which I shall discuss later in this judgment, I am not surprised that she exhibits a dislike for [Aaron] when in [Rebecca]’s care.

28[Aaron] says that [Carina] does have a good relationship with him, but that it could be better if [Rebecca] encouraged it.

29In my opinion, it is essential that [Carina] spend time in a situation where she is able to develop a meaningful relationship with both her parents.

30As stated previously, [Rebecca] was in an abusive relationship with [Kim] for at least six months prior to it ceasing. [Carina] was exposed to hearing arguments. It appears that [Kim] took drugs, ice or amphetamines, in [Rebecca]’s home, but not when [Carina] was present. [Carina] witnessed the after effects of a violent incident between [Kim] and [Rebecca] when she saw the bruising around [Rebecca]’s neck. This was not an appropriate environment for a child and, if it continued, she was likely to suffer, at the very least, psychological harm as a result of the behaviours she witnessed.

31I am satisfied that that relationship has now ceased. [Rebecca] is now in a relationship with [Tony] and has been for over a year. [Tony] did not file an affidavit, nor was he in court to support [Rebecca]. [Rebecca] says her relationship with [Tony] is a good one.

32I am satisfied that if [Carina] spent more time in [Aaron]’s care that she would not be subjected to physical or psychological harm, or be exposed to abuse, neglect or family violence. [Aaron] is living in a settled relationship with his wife [Carol]. There is no evidence that she is exposed to arguments, violence or any behaviour linked to the taking of drugs.

Additional considerations

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

33[Rebecca] states that [Carina] tells her on occasions she does not wish to go to [Aaron]’s. She says when she explained to [Carina], around October 2006, she was to spend Sunday night with [Aaron] and he would take her to school on Monday morning, she was not happy about this. According to [Rebecca], [Aaron] is “self centred” and does not talk to [Carina] about what she really wants. [Rebecca] criticises [Aaron] for the fact that [Carina] does not spend time with her friends when in [Aaron]’s care.

34In her affidavit [Rebecca] confirms that [Carina] is aware of the problems she experiences with [Aaron]. [Aaron]’s mother, [Mrs R], gave evidence about [Rebecca]’s attitude to [Aaron] and the comments she would make in front of [Carina]. She states in her affidavit that at times when she would pick [Carina] from [Rebecca]’s house and spend time with her, that [Rebecca] would make comments in relation to [Aaron] like “I hate him”, “I wish he was dead”, “he is useless”, and “he doesn’t pay me enough money”. Mrs Rudy also stated that at times [Rebecca] would say to [Carina] “you don’t want to go to your father’s, do you [Carina]?

35At the end of the trial I explained to the parties, and particularly to [Rebecca], that I thought it was likely that I would increase the time that [Carina] spent with [Aaron]. She stated that this would cause [Carina] to scream when she left her. In my opinion, [Rebecca] has to learn to accept the fact that [Aaron] is going to have a significant input into [Carina]’s life. Her reaction to a change in the time [Aaron] spends with [Carina] is going to impart upon [Carina]. In my opinion, [Carina]’s wishes are coloured by [Rebecca]’s opinion of [Aaron] and should be given little weight.

(b) the nature of the relationship of the child with:

(i) each of the child’s parents

36[Carina] has a very close relationship with [Rebecca]. I am satisfied that [Carina] has a good relationship with [Aaron], although this relationship is not as close as the relationship between [Rebecca] and [Carina].

(ii) other persons (including any grandparent or other relative of the child)

37[Rebecca]’s mother, [Mrs W], has been very much involved in assisting [Rebecca] in the care of [Carina]. She sees [Carina] and [Rebecca] on most days. For three days a week she has taken [Carina] to school and collected her and taken her home. She has a close relationship with [Carina].

38[Carina] also has a close relationship with her paternal grandmother, who sees her each alternate weekend when she spends time with [Aaron]. [Mrs R] has kept in contact with [Carina] by seeing her without [Aaron] when [Carina] was younger and when [Rebecca] would let her have contact.

(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

39In my opinion, [Rebecca] finds it very difficult to encourage the relationship between [Carina] and [Aaron]. [Rebecca] suffered a brain injury when she was younger and accepts that at times this influences her behaviour. She is very bitter, understandably so, for the lack of financial support she has received from [Aaron] over the eight years the parties have been separated. There has only been a short period of time when the amount of child support paid by [Aaron] was anything like a reasonable amount to assist with the care of [Carina]. [Rebecca] has had to work almost full-time to be able to provide for herself and [Carina]. At times [Aaron] has not given her the backup and support she requires and she feels very let down in relation to this. [Rebecca] finds it difficult to let go of these issues and, for the sake of [Carina], encourage her relationship with [Aaron].

40At the end of the trial I ordered that each of the parties attend the Mums & Dads Forever course. I am hopeful that having undertaken this course, [Rebecca] may appreciate the advantages to [Carina] of encouraging her relationship with [Aaron].

41I am satisfied that [Aaron] understands the importance of [Carina]’s relationship with [Rebecca] and encourages that relationship. His wife has discussed the issue of where [Carina] is to reside with her. In my view, that is not appropriate and should not have occurred.

(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i) either his or her parents

42If it is ordered that [Carina] has to spend more time with [Aaron], initially [Rebecca] will be very upset. She is unlikely to hide her feelings from [Carina], and this will be distressing for her. It is also likely that [Carina] will miss [Rebecca] if she is ordered to spend more time with [Aaron].

43If [Carina] spends more time with [Aaron], she is likely to develop a closer relationship with him away from [Rebecca]’s environment, where the relationship with [Aaron] is not encouraged. It will also give him the opportunity to be involved in school and after school activities.

(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

44The parties live close to each other. If [Carina] spends more time with [Aaron] she will attend the same school. Handover and pickup could take place from school, meaning that the parties would not have to deal with each other on a one to one basis.

(f) the capacity of:

(i) each of the child’s parents; and

45[Rebecca] appears to have provided well for [Carina], except for the period where she was involved in the relationship with [Kim]. I have previously indicated that this was a very unhealthy environment and one that [Carina] should not have been exposed to for such a long period of time. [Rebecca], with the help of her mother, has provided a stimulating environment for [Carina]. She attends a number of extracurricular activities and has a large circle of friends.

46[Aaron] has the capacity to care for [Carina] and provide for her intellectual and physical needs. He appears not to understand her need to have contact with her own friends on weekends, as well as the friends with whom [Aaron] wishes her to mix. He has disappointed [Carina] on occasions by promising things which have not occurred. Otherwise, he and his wife well able to deal with [Carina]’s needs and offer a stable and secure environment for her. [Aaron] is able to manage his work hours to fit in with [Carina]’s activities.

(ii) any other person (including any grandparent or other relative of the child)

47I am satisfied that both [Mrs R] and [Mrs W] have the capacity to care for [Carina]’s needs. I have no difficulty with either of them being involved in the care of [Carina].

to provide for the needs of the child, including emotional and intellectual needs

(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

48I am very disappointed in the manner in which [Aaron] has chosen to provide financially for [Carina]. As stated previously, there has only been a short period where he was providing anything like appropriate financial support for her. [Aaron] is self-employed and I have no doubt is able to adjust his taxable income in a manner which results in a minimal assessment of child support. This lack of financial support reflects poorly upon [Aaron] and his attitude and responsibilities to parenthood.

49Otherwise, [Aaron] has, since 2004 complied with court orders and sought to spend as much time as was allowed by [Rebecca] with [Carina]. He has provided an appropriate family environment for her with the assistance of his wife.

50[Rebecca] has demonstrated her ability to care for [Carina] and be a responsible parent. She has done this in circumstances where she has had limited financial support and has had to work hard to provide for her. She has been ably assisted by her mother, and between the two of them they are to be congratulated for the quality of the care they have been able to provide [Carina].

51The only area in which [Rebecca] has fallen down in her responsibilities as a parent is her inability to be able to encourage [Carina]’s relationship with [Aaron]. [Aaron] and [Rebecca] cannot communicate at all. [Rebecca] says it is because [Aaron] wants his own way. I do not think this problem with communication is a one way street. As stated previously, [Rebecca] is very angry and hurt about the lack of assistance she has had from [Aaron] over the years. This colours her perception of him and she does not want to have to deal with him, or discuss anything with him. It is her view that any decision making in relation to [Carina] should be her own and she should not have to communicate with [Aaron]. This attitude has to change, both parties should be involved in decision making in relation to [Carina]. It may be that they need some assistance through a family relationship centre to establish a manner in which they can communicate properly with each other.

(j) any family violence involving the child or a member of the child’s family;

52[Carina] was exposed to [Rebecca]’s abusive relationship with [Kim]. She heard numerous arguments and may have, on occasions, been exposed to [Kim]’s behaviours while under the influence of drugs. While she did not see the serious assault upon [Rebecca] by [Kim], she saw the aftermath in terms of the bruising upon her. [Rebecca] was finally able to finish that relationship and obtain a Violence Restraining Order against [Kim]. She has had no contact with him since April 2006 and is unlikely to do so again. There is no evidence that her present relationship with [Tony] is violent or that [Carina] would be exposed to violence in the future.

(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

53In my view, it is appropriate to make an order least likely to lead to the institution of further proceedings. These parties were involved in proceedings in this court in 2004 and these proceedings commenced in 2006. They should now move forward with some certainty as to what the arrangements are going to be for the future. It will also be important for [Carina] to have some certainty in her future arrangements and not be concerned about the impact of court decisions on her life.

Conclusions

54S 70A of the Family Court Act 1997 states that the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. That presumption does not apply if there are reasonable grounds to believe that a parent of the child is engaged in abuse of the child or family violence. I am not satisfied that either of these parties have been involved in abuse or family violence, except to the extent that [Rebecca] has been a victim of it. In my opinion, the presumption applies. There are no circumstances established by the evidence that would cause that presumption to be rebutted and it is, therefore, appropriate to make an order that the parties have equal shared parental responsibility.

55Having established that [Rebecca] and [Aaron] should have equal shared parental responsibility for [Carina] I must, pursuant to s 89AA(1), consider whether [Carina] spending equal time with each of the parents would be in her best interests and whether it is reasonably practicable and, if it is both of those, consider making an order for her to spend equal time with each of her parents. It is [Aaron]’s case that [Carina] should spend equal time with each of her parents. [Rebecca] says that the current arrangement, that is, that [Carina] spends three nights per fortnight and half the school holidays with [Aaron] should continue.

56In my view it is not appropriate that [Carina] spends week about with each parent. She is more closely bonded to [Rebecca] than she is to [Aaron]. [Rebecca] appears to be more in tune with [Carina]’s interests and has provided well for her schooling and her extracurricular activities. The parties have difficulty communicating, which would mean that an equal shared care arrangement may be difficult to implement. In my opinion, however, it is important that [Carina] spends more time with [Aaron] to develop a closer relationship with him and to give him the opportunity to contribute to her upbringing. It is appropriate that he spends substantial and significant time with [Carina] to include time both on the weekends, holidays and during the week to allow him to be involved in her daily routine. In my opinion, [Aaron] should spend time with [Carina] from after school Friday to before school Wednesday each alternate week, and [Carina] should reside with [Rebecca] for the balance of the school term.

57The parties should share equally the term school holidays, including the Christmas school holidays. In the Christmas school holidays [Carina] should spend time with each of them in alternating blocks of one fortnight with each parent. Such an arrangement will allow [Carina] to spend significant time with both parents, be predominantly exposed to [Rebecca], with whom she has a very close relationship, but be given time to establish a closer relationship with [Aaron] and to experience the stability which occurs in that household. In my view, such an arrangement is in [Carina]’s best interests.

Proposed orders

1The Applicant, [AARON R] , and the Respondent, [REBECCA W] , have equal shared parental responsibility for the child [CARINA] (“[Carina]”) born [in] March 1999.

2 [Carina] live with the Applicant:

(a)each alternate week from after school Friday to the commencement of school on Wednesday;

(b)one half of all term school holidays;

(c)subject to (d) and (e), one half of the Summer school holidays, alternating two weeks with the Applicant and two weeks with the Respondent, with the last weekend before school starts being with the Respondent;

(d)in 2008 and each alternate year thereafter from 11.00 am on Christmas Day until 11.00 am on Boxing Day;

(e)in 2009 and each alternate year thereafter from 11.00 am on Christmas Eve until 11.00 am Christmas Day;

(f)in the event that Father’s Day falls during when [Carina] is with the Respondent, [Carina] spend from 5.00 pm Saturday to 5.00 pm Sunday with the Applicant.

3In the event that Mother’s Day falls when [Carina] is spending time with the Applicant, [Carina] spend 5.00 pm Saturday until 5.00 pm Mother’s Day with the Respondent.

4In the event that the Respondent’s birthday falls on a day when [Carina] is living with the Applicant, [Carina] spend from 9.00 am to 5.00 pm with the Respondent if it is a weekend day, or from 4.00 pm to 6.00 pm with the Respondent if it is a school day.

5 The applications and response otherwise be dismissed.

I certify that the preceding [57] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate