S and E

[2009] FCWA 125

[2009] FCWA 125

JURISDICTION	:	FAMILY COURT OF WESTERN AUSTRALIA
ACT	:	FAMILY COURT ACT 1997
LOCATION	:	PERTH
CITATION	:	S and E [2009] FCWA 125
CORAM	:	MONCRIEFF J
HEARD	:	9 & 10 SEPTEMBER 2009
DELIVERED	:	18 SEPTEMBER 2009
FILE NO/S	:	PTW 2667 of 2007
BETWEEN	:	S
Applicant
AND
E Respondent
Catchwords:

CHILDREN - best interests - with whom a child lives - parental responsibility

Legislation:

Family Court Act 1997 - s 5(1), s 66, s 70A and s 89AA

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr W Meredith
Respondent	:	Self Represented Litigant

Solicitors:

Applicant	:	William Llewellyn Meredith
Respondent	:	Self Represented Litigant

[2009] FCWA 125

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

Gardner & Atkins (2007) FCWA 11
Mazorski & Albright (2007) 37 Fam LR 518

[2009] FCWA 125

Introduction

1 This is an application for parenting orders in relation to the child of the parties, [Sienna], born [in] August 2000.

2 The applicant in these proceedings is [Mr S], Sienna’s father.

3 The respondent is [Ms E], Sienna’s mother.

4 The parties are unable to agree about the care arrangements for Sienna.

5 Mr S resides in [a southern suburb of Perth], and Ms E resides in [a suburb in the

Eastern states].

6 Mr S asks that I make orders that Sienna continue to reside with him and that she

spend time with Ms E in [the Eastern states] to coincide with all of the school holidays. He proposes that Sienna spend two weeks at Christmas time, arranged so as to include Christmas Day in each second year and one half of each of the school term holidays with Ms E. He proposes that there be telephone contact organised on two occasions per week. He is also agreeable to facilitating telephone contact upon Sienna’s reasonable request.

7 If Sienna were to reside in the Eastern states with Ms E then he would seek a

“mirror image” of those orders providing him with time with Sienna during school
holiday periods.

8 If Sienna was to reside in the Eastern states with Ms E then she would seek

orders providing for Sienna to spend time with Mr S each school holidays with telephone contact as has been sought. She also says she would facilitate Sienna’s reasonable requests to call her father.

9 Should Sienna reside in Perth with Mr S, Ms E seeks orders that provide for

Sienna to spend one half of the Christmas school holidays, including Christmas Day in each second year, with her and all of the July holidays and telephone contact three times a week. She does not seek to spend time with Sienna during the other term school holidays.

10 Mr S seeks that he have sole parental responsibility. Ms E seeks the parties have equal shared parental responsibility.

The evidence

11 The presentation of this case was a little hampered initially through affidavit

material not being filed in accordance with orders made by her Honour Justice Penny
on 29 June 2009, as to the filing of updated material.

12 I received into evidence draft statements of Mr S’s witnesses which had been

prepared, but not formalised into affidavits. It also appeared that an affidavit had been prepared by Mr S updating his situation, but had been lost when filed. Copies of the statements were provided to Ms E and she was agreeable to me adopting that course

[2009] FCWA 125

on the basis that she was given ample time to consider the contents of the documents
to prepare any questions she may have.

13 Accordingly, I had before me statements of Mr S’s two witnesses: his mother,

Mrs S, and his brother, [Keith S], Mr S’s draft affidavit with attachments and a recently filed affidavit of his partner, [Kendal].

14 Additionally, Sienna’s school teacher, [Ms B], gave evidence by telephone and

Sienna’s after school care coordinator, [Ms L], gave evidence in person, both in answer to a subpoena.

15 Ms E had filed a further affidavit of her own on 2 September 2009, and also an affidavit of her father, [Mr D], on 1 September 2009. [Mrs W], but she called them to give evidence.

16 Ms E did not file an affidavit of her partner, [Mr K], or her grandmother,

17 Mr D, Ms E’s father, did not give evidence as apparently he had lost his voice.

18 A family report was prepared by [Mr B], a Family Consultant attached to the court, dated 7 September 2009.

19 Ms E cross-examined Mr S and his partner, Kendal, but did not seek to cross- examine either Mr S’s mother, Mrs S, or his brother, Keith.

20 It became apparent in the course of the trial that a document, referred to as a

draft report, had been prepared by a social worker, [Ms R] in May 2008. The report is
headed “Legal Aid Western Australia Children’s View Report”.

21 What is unusual is that the Court subsequently made an order appointing [Ms R]

as a single expert for the purposes of these proceedings, however, she did not prepare a single expert report. The Court was given to understand that the reason why that report was not prepared was to do with funding difficulties.

22 The draft report was received into evidence as Exhibit 5, however there are

numerous difficulties with the report in terms of its status as no one could inform the Court as to how it had come about and further, Ms R was not available to be questioned.

23 The Court can only make assumptions about how it was the report came into

existence, particularly given that the parties were in a form, at least, of negotiation in June 2008, which ultimately led to a document entitled “Heads of Agreement” being signed by them and dated 25 June 2008.

Credibility

24 I had the opportunity of observing all of the witnesses, with the exception of Mr D in the witness box or otherwise hearing from them.

[2009] FCWA 125

25 Mr S’s mother and brother were unchallenged in their evidence and I accept

their evidence.

26 Whilst there are some aspects of the management of the relationship between

Sienna and Ms E by Mr S that are not satisfactory and about which I will refer later in these reasons, overall he impressed me as a witness of truth. He was frank and open in my assessment and attempted to answer fairly questions put to him, both by Ms E and by the Court.

27 I was also impressed by the evidence given by Kendal. She struck me as

somebody who was spontaneous, open and answered questions appropriately and
honestly.

28 The evidence of Ms E concerned me in several material aspects. I formed the

impression she was equivocal and at times very vague in the giving of her evidence. However what was of particular concern to me was the minimisation of episodes of family violence and the failure to accept, it would seem, responsibility for choices that had been made.

29 Mr K was a most unimpressive witness. He was hostile, defensive and evasive.

His demeanour in the witness box was suggestive of a person who was easily agitated with a somewhat blurred sense of what is appropriate behaviour.

30 Mrs W impressed me as a witness of truth, although the evidence she had to give

served really only to underscore the lack of effective communication between Mr S
and Ms E.

31 The Family Consultant, [Mr B], was called to be cross-examined on his report.

He was unshaken in his cross-examination as to the weight and credibility that should be given to Sienna’s expressed views and, if anything, his cross-examination served to strengthen his report.

32 Ms B was a particularly impressive witness and her evidence was not substantially challenged. Similarly, Ms L’s evidence was not materially challenged.

33 Overall, unless I otherwise specify in these reasons, wherever there is a conflict

between the evidence of Mr S and his witnesses and Ms E and Mr K, I prefer the
evidence of Mr S and his witnesses.

Background

34 Mr S was born [in] March 1984, and Ms E [in] May 1984.

35 They met in 1997 when Ms E’s mother and stepfather built a house next door to

Mr S’s parents. Mr S and Ms E started dating in September 1998, and in January
2000, Ms E was pregnant.

36 At the time that Ms E fell pregnant with Sienna she and Mr S were both very

young. At the time Sienna was born both of the parties had just turned 16 and were

[2009] FCWA 125

still at school. Each of the parties had unsuccessfully attempted to try to finish high
school.

37 The parties were significantly assisted in Sienna’s early years by their respective

families. Shortly after Sienna’s first birthday Sienna and Ms E moved into Mr S’s
parent’s home as Ms E’s mother and stepfather had sold the adjoining property.

38 Later in 2001, Ms E and Mr S rented a property from a friend of Mr S’s family.

39 The parties’ relationship started to deteriorate at that point and ultimately the

relationship failed with the parties separating when Mr S returned back home to his parents at the end of July 2002. Ms E returned home with Sienna in about November 2002.

40 In about May 2003, Ms E moved out of her parents’ house into a rented

property.

41 In 2004, Sienna commenced at [the local] Primary School, ultimately moving to [another] Primary School in 2005, and that is the school she now attends.

42 In about April 2004, Ms E commenced dating Mr K and shortly thereafter he

moved in with Sienna and Ms E. Ms E and Mr K now have two children, [Kai] aged
two years, and [Brooke] aged one year.

43 The parties had been able to arrange for Sienna to spend time with her father

each weekend. The arrangements had developed following their separation and as noted by Ms R, “contact arrangements have changed over time, making them age appropriate according to the changing needs of Sienna”. Those arrangements continued until April 2007, when Mr K was offered a job in the Eastern states. In her affidavit filed on 2 September 2009, Ms E says:

“In April 2007 [Mr K] was offered his old job in [the Eastern states] and as we’d been having some problems in our relationship and decided we needed a fresh start and he accepted the job (sic).”

44 She goes on to say:

“Before moving we sought legal advice about relocating and were advised there would be no problems with us taking [Sienna] to live in [the Eastern states.]”

45 The evidence about the obtaining of legal advice prior to removing Sienna to the

Eastern states without notice to Mr S, was entirely unsatisfactory. Ms E claimed to have spoken to the Legal Aid Advice Line and further in her evidence, claimed to have spoken to a solicitor, whose name she could not remember, from the “Yellow Pages”. In any event, whatever the advice may have been that they were given (and as unsatisfactory as it may have been) Ms E resolved to move to the Eastern states with her partner without giving Mr S any notice.

[2009] FCWA 125

46 She agreed in her evidence that the first he became aware of the move to the

Eastern states was when he telephoned and was told that Ms E and Sienna were now living in the Eastern states.

47 It is not without significance to my finding that Sienna had raised sometime

earlier with her father the possibility of a move to the Eastern states, in response to which Mr S had approached Ms E to be told that the only trip that was being contemplated was as a holiday.

48 Her evidence was that she and Mr K made the decision to move to the Eastern

states and moved three days later. I asked Ms E about her commitments in Western Australia, for example, giving notice on her lease, to which she replied “the lease was up anyway”. I find the circumstances surrounding the removal of Sienna from Perth to the Eastern states to be entirely unsatisfactory and one that does neither Ms E or Mr K any credit.

49 In any event, Mr S made an application to the Family Court of Western Australia for a recovery order and an order was made on 12 June 2007 as follows:

1. Until further order of the Court the applicant Mr S be invested with sole parental responsibility for the child Sienna S born [in] August 2000.

2. Until further order of the Court the said child reside with the applicant Mr S in Western Australia.

3. A recovery order issue in the usual form for the return of the child Sienna S born [in] August 2000 into the care of the applicant.

50 The recovery order was executed by the Australian Federal Police on 14 June

2007, and since that time Sienna has been in Mr S’s care and he has had sole parental
responsibility.

51 There has been only limited contact between Sienna and her mother. It appears

that Ms E came to Perth on several occasions and on each occasion when she approached Mr S some time was arranged, albeit short, for Ms E to spend with Sienna.

52 It was not until June 2008, when the parties entered into the Heads of Agreement

(“the Agreement”) that overnight contact was arranged with such contact to take place
in Victoria.

53 The Agreement provided:

1.	That Sienna live with the father.
2.	That the mother have telephone contact with Sienna at 6:30 pm WA time every Tuesday and 5:30 pm every Thursday and Sunday WA time.
3.	That Sienna spend time with the mother in [the Eastern states] during the school term vacations as follows:

[2009] FCWA 125

(i) from 28th or 29th September until 12th October 2008;

(ii) from 19th or 20th December 2008 until 8th January 2009;

(iii) from 5th July 2009 until 19th July 2009;

(iv) for four weeks in the second half of the 2009/2010 summer school vacation the dates of which are to be determined.

54 The Agreement further provided that Ms E was to meet the costs of the first visit

and thereafter the parties to share airfares and for procedural mechanisms for the
provision of proof of the return airfare, in the following terms:

“That the mother provide proof of the return airfare (by copy of the ticket or itinerary) to the father whereupon the father will pay his half share of the costs to the mother within 14 days.”

55 The Agreement also provided for telephone contact between Mr S and Sienna whilst she was with her mother.

56 Significantly, the Agreement further provided that “the father post to the mother

copies of any school reports, certificates of achievement or school photographs as
soon as practicable after they become available”.

57 Sienna spent time with her mother in the Eastern states in September/October

and December/January as agreed. She did not spend time with her mother in July as a result of an incident which occurred when Mr S received a telephone call, allegedly from Mr K early on the morning of 27 June 2009.

58 There is a dispute about whether or not the telephone call occurred. In her affidavit, Ms G says that on the morning in question:

“[Mr S] and I were woken up by a phone call to his mobile phone at 5:50 am. The number was withheld, Mr S ignored the call and then the phone rang again still being a withheld number. Mr S answered the call and the voice on the other end was male. The voice proceeded to tell him that Mr S was going to be killed. The man said “I’m going to fucking kill you I’m going to fucking kill you. I’m going to cut your fucking throat and I don’t care if I do time for it”

59 She goes on to say that the mobile telephone was on loudspeaker and she heard

every word. She also notes that Mr K has a distinctive voice and that she was in no
doubt, having heard his voice previously, that it was him.

60 Mr S’s evidence is consistent with that given by Ms G, and neither of them were challenged about their evidence.

61 The evidence given by both Ms E and Mr K about the telephone call was

entirely unsatisfactory. Ms E’s position shifted from that of not knowing whether it occurred, to denial, whilst Mr K wanted to challenge the ability of Mr S and Ms G to

[2009] FCWA 125

identify his voice on the telephone. Mr K also claimed that he had never spoken with
Mr S in the past, so Mr S would not know his voice.

62 I entirely reject Mr K’s and Ms E’s evidence about the telephone call and I

accept that the same did occur and that a threat was issued in the terms as I have set
out above.

63 In any event as a consequence of the telephone call received Mr S told Ms E the next day that Sienna would not be travelling to the Eastern states.

64 It appears that Ms E did nothing at that point to attempt to enforce the

agreement.

65 There was no explanation or reason proffered by Ms E as to why, despite her

complaint about Mr S’s action in refusing contact, she did nothing further about it, particularly given that the matter was not allocated a trial date until August 2009, and the matter was before the Court on 29 June 2009, the day after Ms E had been told that Sienna would not be travelling to the Eastern states

Legal principles

66 Children’s proceedings are governed in this case by Part 5 of the Family Court Act 1997. In determining the outcome of parenting matters the Court must consider the best interests of the child as the paramount consideration; s 66A. That is the overriding principle.

67 Section 66 sets out the objects of Part 5 and the principles which underlie those objects. This section provides:

“66(1) [Objects of this Part]

The objects of this Part are to ensure that the best interests of children are met by —

(a)	ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)	protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)	ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)	ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

[2009] FCWA 125

66(2) [Principles underlying these objects]

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

(a)	children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)	children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)	parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)	parents should agree about the future parenting of their children; and
(e)	children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”

68 In determining what is in a child’s best interests I must consider the matters set

out in s 66C. The Act prescribes primary considerations and additional considerations
which must be considered overall.

69 There are two primary considerations. The first is the benefit to the child of

having a meaningful relationship with both of the child’s parents and the second is the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.

70 I must also take into account, in so far as they are relevant, the additional

considerations set out in s 66C(3) and I must also consider the extent to which each parent has fulfilled his or her parenting responsibilities and has facilitated the other parent in fulfilling his or her parental responsibilities (s 66C(4))

71 I am also required to ensure that any order made does not expose a person to an unacceptable risk of family violence.

72 In this case I must also consider the making of orders about parental

responsibility.

73 Section 70A provides as follows:

“(1) [Presumption of equal shared parental responsibility]

[2009] FCWA 125

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

(2)

[Where presumption does not apply]

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

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

(3)

[Presumption applies unless not appropriate]

When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

(4)

[Presumption may be rebutted]

The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.”

74 I am obliged to make such parenting order as I think proper, which includes an

order for parental responsibility and in the event that I order that the parties have equal shared parental responsibility, then I must also apply the provisions of s 89AA which provides:

“(1)

[Equal time]

If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must —

(a)	consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)	consider whether the child spending equal time with each of the parents is reasonably practicable; and

[2009] FCWA 125

(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

2) [Substantial and significant time]

If —

(a)	a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child; and
(b)	the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents,

the court must —

(c)	consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)	consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)	if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

(3) [Child taken to spend substantial and significant time]

For the purposes of subsection (2), a child will be to spend substantial and significant time with a parent only if —

(a) the time the child spends with the parent includes both —

(i) days that fall on weekends and holidays; and

(ii) days that do not fall on weekends or holidays;

and

(b)

the time the child spends with the parent allows the parent to be involved in —

(i)	the child's daily routine; and
(ii)	occasions and events that are of particular significance to the child;

and

[2009] FCWA 125

(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

(4)

[Other matters]

Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

(5)

[What court must have regard to]

In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to —

(a)	how far apart the parents live from each other; and
(b)	the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)	the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)	the impact that an arrangement of that kind would have on the child; and
(e)	such other matters as the court considers relevant.”

75 For the purposes of the Family Court Act, family violence is defined in s 5(1) as:

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

76 It is important to understand that in cases where the presumption of equal shared

parental responsibility does not apply it does not necessarily follow that one party will gain sole parental responsibility. Further, I am not bound by any interim order that may have been made as to parental responsibility, as has been made in this case (s 70B).”

Primary considerations

• the benefit to the child of having a meaningful relationship with both of the child’s parents;

[2009] FCWA 125

77 There can be no doubt that it would be to Sienna’s benefit to have a meaningful

relationship with each of her parents. There is no doubt that they both love Sienna and
there is no doubt that Sienna loves both of them.

78 Whilst clearly Sienna has been conflicted in the past about what outcome she

might be comfortable with (to which I will refer later in these reasons) I am left with
no doubt that she will derive a benefit from a relationship with each of her parents.

79 Meaningful in the context of the Act has been considered by her Honour Brown J in Mazorski & Albright (2007) 37 Fam LR 518. Her Honour said at p 526:

“I proceed on the basis that when considering the primary considerations and the application of the objects and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative objection, not a strictly quantitative one.”

80 I agree with her Honour’s conclusion and respectfully adopt the same.

81 Inevitably, with the parties living on the opposite sides of the continent it is

going to be difficult for them to maintain the level of physical contact that they would
desire with Sienna, and no doubt, Sienna would desire with them.

82 Accordingly, my emphasis must be directed towards a consideration of which of

the two parents is more likely to promote a meaningful relationship between Sienna
and the parent with whom she does not reside.

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

83 As I have touched upon earlier in these reasons I have concerns about the relationship that exists between Ms E and her partner.

84 In her affidavit and as I have quoted earlier in these reasons, Ms E refers to

certain difficulties that existed in her and Mr K’s relationship prior to their relocation
to the Eastern states.

85 She did not disclose that she had, in fact, obtained a violence restraining order against him which she subsequently had discharged.

86 Aspects of Mr K’s evidence were alarming when viewed in the perspective of a

risk of family violence. In part, Mr K’s response to assertions about family violence
was that “every family has stress”.

87 Sienna has complained that Mr K yells at her. Indeed, in the family report mention was made of Mr K yelling at Sienna and the fact that she did not like it.

88 The evidence of both Ms E and Mr K was unconvincing. Ms E said that Mr K

would raise his voice only in discipline whilst Mr K sought to draw a distinction between “yelling and discipline”. He then agreed that he yelled at Sienna, but only as

[2009] FCWA 125

discipline which he saw as his duty to back up his partner as “an eight year old doesn’t understand the difference”. I am not entirely sure what Mr K meant by an eight year old not knowing the difference, particularly when Sienna has expressed a view about the behaviours.

89 I was concerned also that Ms E was keen to minimise the events that led to her

taking out a violence restraining order against Mr K. Initially, she denied that there was any physical interaction and then she changed her position, acknowledging that in fact she had been pushed. At the time she was pregnant with Kai. She said that at the time the family was under stress due to her reduced income arising from her inability to work as a result of her pregnancy. Mr K conceded in answer to me that pushing was unacceptable, although it was apparent from his manner and his evidence that he considered it less so than to have punched another individual.

90 There was also some disagreement about whether or not at one stage Mr K had

kicked in a door. The evidence about this episode was unsatisfactory and the positions adopted by Ms E and Mr K were conflicted. Ms E said that the wind had got hold of the door and caused it to break. Mr K’s version was that it was an internal door being used as an external door and was falling apart. Mr K made no reference to his foot having any intervention in the process while Ms E said that the door was damaged when Mr K used his foot to stop the door slamming with the wind.

91 I have referred to the telephone call that I find occurred on the morning of 27 June 2009. Again, the evidence given by each of Ms E and Mr K was unsatisfactory. Ms E said that she did not know if he had made the call “to the best of my knowledge”. I have referred to Mr K’s explanation earlier on.

92 There is one other matter about which the conduct of Mr K needs to be

considered and that is an assertion that whilst seated outside the court room Mr K referred, in a voice of sufficient volume to ensure it was heard, to Mr S as “a loser” and Ms G as “a slut”.

93 When questioned about this, Mr K’s answer was “can’t recall”. Ms E denied

that there had been any loud talk, however, her witness Mrs W, agreed that they were “talking quite loudly”, although she does not recall the words “loser” or “slut” being used, certainly there was conversation occurring in her memory about Ms E and Mr K’s desire to “win”. Her explanation for them speaking loudly was the acoustics of the court foyer.

94 I do not accept that explanation. I can take notice based on many years

experience in the precincts of this court building that it is entirely possible to have a discreet and private conversation in the court foyer and in my finding Mr K was attempting to bait or otherwise demean Mr S and Ms G.

95 I am left with the overall impression that Mr K has a tendency to aggressive and

inappropriate behaviour, a risk of exposure to which, in my finding, does not exist for
Sienna, in the household of Mr S and Ms G.

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Additional considerations

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

96 Sienna had the opportunity to express her views to the Family Consultant, Mr B,

and they are set out in his report. The draft report of Ms R, to which I have already referred, also purports to set out Sienna’s views as they were at the time of the writing of the report. She records:

“[Sienna] would like to live in [the Eastern states] with her mother and come back to Perth for holidays because she misses her little brother and her mother. Sienna also misses [Mr K] who at times is nice, spoils her with chocolate and Easter Eggs -

“If I lived in the Eastern states, I would miss Dad. I would ask my Mum if
she could move here again”.

97 Ms R goes on to record –

“It is my impression also that [Sienna] finds herself in a difficult situation in relation to the relocation to the Eastern states and her responses were guided by worry and sense of responsibility for parents”.

“We didn’t tell my Dad that we were going … I tried to tell him about

stuff”.

98 Sienna is now some 15 months older than she was at the time the report was

prepared by Ms R, however, even at that time, despite her being only seven years and nine months of age, she was clearly conflicted and torn and had been expected to bear inappropriate responsibilities, for example, concealing or knowing of the planned moved to the Eastern states and attempting to tell her father.

99 Ms E urges me to find that Sienna wants to reside in the Eastern states. She

relies on Ms R’s report and also the fact that when she was in the Eastern states, which
is corroborated by Mrs W, she cried and said she did not want to go back to Perth.

100 Sienna’s reaction in crying about the possibility of returning home when she is

spending the second period of time in almost two years with her mother interstate is hardly surprising and does not, in my finding, necessarily reflect anything other than the often stated desire of children of separated parents to be with each of their parents.

101 I consider it entirely natural that she was distressed after spending, no doubt,

what would have been a wonderful period with her mother and two young half siblings
over Christmas at the end of 2008.

102 To Mr B, Sienna was clear in her desire that she would like to continue living

with her father in Western Australia and spend time with her mother for blocks of time
up to three weeks at a time.

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103 Curiously, Ms E accepted that that was what Sienna had said and, in particular, accepted what Mr B had reported at paragraph 19 of his report where he says:

“When [Sienna] was asked for her thoughts or feelings if the Family Court insisted that she live with her mother in [the Eastern states], she responded “quite freaked out”.

104 Ms E accepted that that was an accurate statement.

105 At paragraph 20:

“Discussions on how much time she would like to spend with her mother in [the Eastern states], got side tracked when [Sienna] reiterated that she would miss her father. She was asked at this point if she missed her mother while she lived with her father, she responded “miss Mum a little bit” but then said “miss Dad more” and “I even miss Dad when I go to Nan's”.

106 The evidence from Ms B was that Sienna was socially adapted and well

adjusted. Mr B accepted that Sienna’s statements of wishes were appropriate and had
not been inappropriately influenced or schooled.

107 I accept as genuine Sienna’s wishes and that I should give them some weight.

The impressions given of Sienna particularly by her teacher who has taught her now for nearly seven terms, is that she is a little girl who is remarkably well adjusted and socially adept.

108 There are other statements of hers contained within the report which also lend

weight to her expressed views. Sienna has an ability to express herself it would seem quite clearly. In particular, her comments about the nature of the relationship between her parents showed remarkable insight. Mr B reported in paragraph 15:

“When asked to comment on her perception of the parental relationship, [Sienna] indicated a belief about her father towards her mother – “he doesn’t like talking to or seeing her”.

109 Sienna added:

“They both just don’t like each other”.

110 In relation to either parent denigrating the other to Sienna she noted:

“I haven’t heard Mum say mean things about Dad only I don’t like him

and [Mr K] said this also”.

111 Sienna indicated that she had not heard her father make denigrating comments

about her mother.

112 The other point of concern from the report was Sienna’s repeated complaint that

her mother “does not listen to her”. Unfortunately, it would seem Ms E takes a literal

[2009] FCWA 125

view of that statement in that she answers it by saying that she has competing
priorities with two younger children by Mr K.

113 That misses the point as it is quite clear that Sienna is seeking a qualitative interaction rather than a quantitative one.

.

the nature of the relationship of the child with:

(i)	each of the child’s parents; and
(ii)	other persons (including any grandparent or other relative of the child);

114 I have, in effect, dealt with this already in these reasons and I find that Sienna

has a qualitative relationship with each of her parents and one that is appropriately nurtured and maintained and the orders I propose accommodate the outcomes sought as to time Sienna spends with the parent with whom she is not residing.

. 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;

115 Overall, my impression of the parties was that Mr S is more likely to promote a

relationship between Sienna and her mother than Ms E is with Mr S. In making this finding I return again to reconsider the events of Sienna’s removal from Western Australia to the Eastern states. The actions of Ms E and the way she carried those actions out showed a callous disregard to Sienna’s relationship or her right to have a relationship with her father.

116 Mr S was left not knowing where Sienna was and had been entirely and, in my finding, deliberately cut out of any involvement in that very important decision.

117 That being said, Mr S also could have been more proactive since Sienna’s return

about ensuring she had more contact with her mother, although on the other hand, Ms E did not demonstrate any particular energy in securing more contact. Further, it appears that she was present in Perth on one occasion and did not seek contact, although I accept there may have been valid reasons why not.

118 This assertion was not pursued to such a degree and the evidence is not such that

I can make any positive finding other than to express a concern that that would appear to be the case, and that it is regrettable if Ms E was in Perth and did not spend time Sienna.

119 Since the Heads of Agreement was entered into Sienna has spent some block

time with Ms E in the Eastern states. But for the telephone call on 27 June 2009, I am confident that Sienna would have spent time in the July school holidays in the Eastern states.

120 Whilst I appreciate that Mr S and Ms G were disturbed by the telephone call, it

is unfortunate the contact between Sienna and her mother did not occur as originally
agreed.

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121 There have been difficulties with telephone communication, although I am not

satisfied that either party has deliberately interfered with Sienna’s ability to communicate with the other parent. However, I do accept that at times it may have been awkward or other commitments or circumstances may have frustrated the contact. I am not satisfied that either of the parties has wilfully interfered with Sienna’s telephone contact with the parent with whom she is not residing at the time.

122 Overall, I am satisfied that Mr S is the parent more likely to promote the relationship with the parent with whom Sienna is not residing.

.

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

(i)	either of his or her parents; or
(ii)	any other child, or other person (including any grandparent or other relative of the child) with whom he or she has been living;

123 Sienna’s home environment in Perth includes her father, Mr S, and his partner,

Ms G. She has frequent involvement with other members of her father’s family, including his mother, brothers and sister, who live nearby and with whom Sienna spends time, both at Sienna’s family home and through their visiting.

124 Certainly, Mr S’s family have been a support to him.

125 Ms E also has extended family that reside in Western Australia. Sienna has had limited contact with them and that is regrettable.

126 Mr D, Ms E’s biological father, has filed an affidavit in the proceedings

indicating that he wants to be available to arrange to spend time with Sienna and similarly, it would seem Ms E’s mother would also seek to spend some time with Sienna.

127 I have no doubt that Mrs W would also like to spend some time with Sienna from time to time.

128 It is regrettable that arrangements have not been made, however, I would reflect

that the way in which the contact has been sought between some of the members of
Ms E’s family and Sienna has not been entirely appropriate.

129 Mr D forwarded two letters to Mr S in the following terms. On 3 July he wrote:

“Dear Sir

I am writing to inform you that as I am [Sienna’s] grandfather I intend to apply for access visits.

Hoping this can be arranged amicably.

I await your reply within the next fourteen days.

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Yours

Mr D”

130 On 4 August, a follow-up letter was sent in the following terms:

“Dear Sir

In regard to the letter sent 3 July, having had no answer we are sending second letter by registered mail.

Failure to reply would leave us with no recourse but to pursue legal options.

I am writing to inform you that as I am [Sienna’s] grandfather, I intend to apply for access visits. Hoping this can be arranged amicable (sic).

I await your reply within the next 14 days.”

131 Ms E conceded to me that she would have been unlikely to respond in a positive way had she received letters in those terms.

132 The difficulty I have with Mr D’s position is that it would seem that he has had

very limited contact with Sienna and, indeed, in the first two years of Sienna’s life,
according to Ms E he had none as he was absent pursuing his own interests.

133 On Sienna’s birthday this year in August, no card or gift was received or even a telephone call from Mr D.

134 Similarly, Ms E’s mother who, according to the undisputed evidence of Ms G, arrived unannounced at Mr S’s home on 18 August 2009.

135 Ms G, in her affidavit, says:

“I had only just pulled into the driveway I hadn’t even opened my door yet and a car pulled in the driveway behind me. I got out of the car as I wasn’t sure who it was and the first words that were said to me were “where is [Sienna] I want to see her now”. As I didn’t know who the person was I kindly asked them who they were. The lady just looked as me and said “I’m her grandmother and I haven’t seen her for 2.1/2 years it’s

[Sienna’s] birthday tomorrow and I want to give her a present” (this was all said in an extremely rude manner, she never once said please or thank you she just demanded). I simply told her that [Sienna] was at child care and that I’d only just come home from work and was about to go and pick her up. I offered to take the present and give it to [Sienna] and tell her it was from her grandmother but she said “no I want to give it to her myself”.

136 By the time Ms G changed and arrived at Sienna’s child care to pick her up, Sienna’s grandmother had already been there and had left.

[2009] FCWA 125

137 That type of contact by a member of Ms E’s extended family is totally

inappropriate, insensitive and selfish. It does not, it would seem, bear any resemblance to promoting a relationship between Sienna and the individual, but rather a case of the individual demanding “their rights” as they wrongly perceive them.

138 It would have taken little effort to make a telephone call or act appropriately in recognition of Sienna’s birthday in each case.

139 That being said, Mr S did acknowledge that it was appropriate for Sienna to

know her extended family and hopefully that can now be promoted in an appropriate and sensitive way. Although Mr D did not give evidence as he had lost his voice, he heard my comments to that effect in open court where he was sitting. I hope all parties take these observations to heart and behave appropriately.

140 Sienna also has a stable school environment and a social network at school.

According to Ms B, she is thriving socially and academically. Inevitably, if Sienna was to live with her mother it could involve her losing significant social and familial contact that has formed a part of her day to day life since birth. The opportunity for her to enjoy relationships with her extended family on her mother’s side would also be further restricted, although she would have a greater interaction with her mother, half siblings and Mr K

.

the capacity of:

(i)	each of the child’s parents; and
(ii)	any other person (including any grandparent or other relative of the child);

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

141 I have touched upon the access that Sienna has to extended family on her

father’s side in Western Australia and also the opportunity she has to have a
relationship with her mother’s extended family.

142 Each of the parents clearly have the ability to provide for Sienna’s physical

needs.

143 It is clear that the parties have been able to provide also for Sienna’s intellectual needs in that she appears to be a bright, well adjusted, articulate child. parent with whom she is not residing.

144 Emotionally she also appears to be very settled whilst obviously missing the

145 I have one concern however, in terms of Ms E’s ability to be perceptive to

Sienna’s needs, which I have already touched upon, namely Sienna’s complaint that her mother “does not listen to her”.

146 Clearly, this is an issue for Sienna as it was repeated during the course of her interview with Mr B and as he has reported in the family report.

[2009] FCWA 125

147 That is not to say I disregard the pressures of a family with two young children and the stress that places on a family.

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

148 I will deal with this when I consider the role that each party has taken fulfilling their responsibilities as a parent.

. any family violence involving the child or a member of the child’s family;

149 I have dealt with this elsewhere in my judgment.

. 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;

150 The orders that I propose to make in this matter are indicative of what best serves Sienna’s best interests at the present time and in the foreseeable future.

151 Sienna is, of course, only nine years of age and I do not ignore the possibility

that when she gets older her views about her residence may shift. That of course is an
unknown.

152 The orders that I propose to make will maintain stability and predictability for

Sienna, given the known circumstances and what is reasonably predicable, at least for the immediate future.

153 Inevitably, if circumstances change such that it is appropriate to review the

orders then each of the parties has that opportunity and where such a change serves
Sienna’s best interests as they may be at that given time.

154 As I have indicated, I also have a greater confidence in Mr S’s ability to support

the relationship between Sienna and her mother which of itself, is less likely to lead to future proceedings or interim disputes about time spent by Sienna with the parent with whom she is not residing.

Fulfilling responsibilities as a parent

155 The Act prescribes that I must consider the extent to which each of Sienna’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent and, in particular, the extent to which each of Mr S and Ms E:

(a)

has taken, or failed to take, the opportunity —

(i)	to participate in making decisions about major long-term issues in relation to the child; and
(ii)	to spend time with the child; and

[2009] FCWA 125

(iii) to communicate with the child;

and

(b)

has facilitated, or failed to facilitate, the other parent —

(i)	participating in making decisions about major long-term issues in relation to the child; and
(ii)	spending time with the child; and
(iii)	communicating with the child;

and

(c)

has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.

156 I have previously made comment in these reasons that Ms E, at least for some

period, was not proactive in maintaining contact with Sienna and certainly Mr S was perhaps a little over-protective or cautious following Sienna’s return from the Eastern states after the recovery order had been executed.

157 It would be fair to say that each of the parties has failed to some degree to

discharge their responsibility as a parent as contemplated by this section of the Act. However, I do not propose to make any adverse finding against either parent as the failure or apparent failure must be seen in the context of the circumstances that each of them was confronting.

158 In any event, Sienna, it would seem, has been a success story. She is a child of

two extremely young parents who were little more than children themselves at the time of her birth. That she has grown to the age she has and presents as she does is a credit to each of her parents.

159 It is also to both of her parents’ credit that whilst Sienna is an articulate observer

of the dispute between her parents, she clearly does not feel involved in it and has not
been a part of it.

Parental responsibility

160 I am called upon to determine the issue of whether the parties share, or Mr S has sole parental responsibility of Sienna.

161 As I have set out earlier in these reasons, the Act requires the Court to presume that it is in the best interests of a child for her parents to have equal shared parental responsibility. That presumption is negated where there has been abuse or family violence or can be rebutted if on the evidence the Court is satisfied it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility.

[2009] FCWA 125

162 Sienna’s parents appear almost incapable of communicating with each other at

any civil level.

163 Mr S’s evidence of telephone calls with Ms E is that they are merely abuse, a

proposition that was not seriously challenged by Ms E, although I do accept that it is
probably not as bad a picture as Mr S would paint.

164 Equal shared parental responsibility between Mr S and Ms E could lead

potentially to further disharmony between them on the one hand and on the other, may
force them to find a mechanism for effective, mature and respectful communication.

165 Having observed each of the parties and having regard to the history of this

matter as I have set out in these reasons, I have little confidence that the parties could achieve the latter. In Gardner & Atkins (2007) FCWA 11, Thackray J, as he then was, made the following observations in the matter that was before him:

“I would anticipate that if they were required to share parental responsibility, they would continue to aggravate each other and Crystal would feel greatly intimidated. This would create many opportunities for conflict, to which Christian would be likely to be exposed. I also consider it likely that an order for equal shared parental responsibility would be more likely to result in the parties coming back to Court to resolve issues which they would be unable to agree themselves.

This ongoing disputation and involvement in litigation would be debilitating for both parents.”

166 The observations by his Honour in that matter are, in my finding, equally true in

this matter.

167 Added to the difficulties of communication, the difficulties of physical distance

between the parties are likely to remain. My concern is that Sienna may well be the loser if I were to impose the responsibilities of equal shared parental responsibility on the parties and what that would require them to do in terms of communication with each other.

168 That being said, this does not mean that either party is relieved of the responsibility of communicating relevant information to the other.

169 In this regard I refer to the incident where Ms E telephoned Mr S to speak to

Sienna. Coincidentally, at the time Mr S was taking Sienna to hospital to have her arm investigated following a fall from her scooter some two days earlier. There was some concern that the arm may have been broken. It was a short conversation and Ms E was left “hanging” as to what the situation was for Sienna.

170 It does Mr S no credit that he did not attempt to call Ms E afterwards and reassure her that Sienna’s arm, in fact, was not broken.

171 Similarly, it does not do Mr S credit that he has not complied with his agreed obligation to provide school reports, notices and copies of certificates to Ms E.

[2009] FCWA 125

172 Where a parent is deprived of the day to day physical contact and proximity to a

child, such certificates, reports and notices assume a greater significance. It is important that that significance is recognised by Mr S and respected and that he complies with his obligations, which I propose to incorporate in my orders in any event.

Conclusion

173 Taking all of the matters to which I have referred into account I have come to

the conclusion that Sienna’s best interests are served by her continuing to reside with
her father in Perth.

174 As the parties have previously agreed they should share the cost of Sienna travelling to spend time with Ms E in the Eastern states.

175 I note that Ms E seeks that Sienna travel to the Eastern states for one half of the

Christmas school holiday period and for the entirety of the July school holiday period, but that she does not seek to have Sienna travel to the Eastern states during the other school holidays.

176 I expressed my surprise at that position earlier in these reasons, however, I propose to make orders in terms that have been sought by Ms E.

177 It is important that the parties understand however, that this does not preclude

them from making arrangements that facilitate Sienna spending more time in the Eastern states, nor does it preclude the parties from making arrangements for Sienna to spend time with Ms E in the event that Ms E visits her family or otherwise is in Western Australia.

178 I would hope that the parties would, by now, have come to terms with the need

for some mutual respect in terms of notice and accommodating the desirability of
Sienna maintaining physical contact with each parent.

179 In making the orders I propose to make in this case I have proceeded on the

basis of the positions of each of the parties, namely that Ms E proposes to continue to live indefinitely in the Eastern states, where she and her partner have now purchased a house, and that Mr S will continue to reside in Perth.

180 Although I am not bound by the propositions advanced by either of the parties,

the reality as presented to me in the course of this trial was that neither party wishes to alter their position or foresees that as being a likelihood. Further, during the course of the proceedings, neither party explored any other possibilities and I formed the impression from each of the parties in any event, that neither of them saw a change in their current living arrangements as being viable or contemplated.

181 I propose therefore to make orders in the following terms:

1. The child, SIENNA S born [in] August 2000, reside with the applicant, Mr S, and he shall have sole parental responsibility for her.

[2009] FCWA 125

2. That Sienna spend time with the respondent mother:

(i)	for a period equivalent to one half of each of the Christmas school holidays, to include Christmas Day in the year 2010 and each alternate year thereafter;
(ii)	from the day following the end of second term in each year to the Sunday prior to the commencement of school in third term in each year;
(iii)	such other times as the parties may agree and in particular each of the parties shall give the other notice of any time that Sienna may be in the Eastern states, in the case of the father, or the mother should be in Perth, in the case of the mother;
(iv)	by telephone at 6:30 pm Western Standard time each Tuesday and Thursday with such contact to be initiated by the respondent contacting Sienna on her mobile telephone and the father shall ensure that the telephone is turned on;
(v)	each of the parties shall facilitate telephone contact with the parent with whom Sienna is not residing upon Sienna’s reasonable request.

3. Each parent be permitted to contact the school that the child attends to provide them with copies of any school reports, reports on behavioural issues, school circulars or notices concerning functions, parent/teacher nights and other school activities to which parents would ordinarily be expected and invited to attend.

4. Each party shall provide the other parent with notice of any significant medical issues concerning the child including details of any treating practitioner and, if requested to do so by the other parent, shall authorise any treating practitioner to discuss the child’s medical issues with that parent.

5. The father shall authorise any school at which the child attends to provide to both parents on a regular basis copies of all school reports, other reports relating to the child, school programmes and behavioural issues and all school circulars in relation to the child.

6. The parties equally share the costs of Sienna’s return airfare from Perth to the Eastern states for the purposes of her spending time with the mother pursuant to these orders.

7. Whilst Sienna is spending time with the mother the father shall be at liberty to contact Sienna on her mobile telephone before 5:30 pm local time (that is where Sienna is situated) on two occasions per week.

8. For the purpose of these orders the mother and the father each keep the other advised of their current residential address, telephone number and, if applicable, email address.

9. The applications otherwise be dismissed.

[2009] FCWA 125

I certify that the preceding [181] paragraphs are a true copy of the reasons for

judgment delivered by this Honourable Court

Associate