SCHIANCHI and LONG
[2018] FCWA 73
•24 APRIL 2018
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: SCHIANCHI and LONG [2018] FCWA 73
CORAM: DUNCANSON J
HEARD: 9, 10, 11, 12 JANUARY 2018
DELIVERED : 24 APRIL 2018
FILE NO/S: PTW 2192 of 2015
BETWEEN: MS SCHIANCHI
Applicant
AND
MR LONG
Respondent
Catchwords:
CHILDREN - Where the presumption that it is in the best interests of the children that their parents have equal shared parental responsibility does not apply - Where it is in the best interests of the children for the mother to have sole responsibility for making decisions about medical issues and the parties to otherwise share parental responsibility - Where both parties are competent and caring parents - Where the orders made as to the children's living arrangements are in their best interests
Legislation:
Family Law Act 1975 (Cth) s 60B, s 60CA, s 60CC, s 61DA, s 65DAA
Category: Reportable
Representation:
Counsel:
| Applicant | : | Mr J Hedges |
| Respondent | : | Mr S Jones |
Solicitors:
| Applicant | : | Pemberton Robertson Family Lawyers |
| Respondent | : | Direct Brief |
Case(s) referred to in decision(s):
Nil
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
1[Ms Schianchi], the mother and [Mr Long], the father are unable to agree about the parenting arrangements for their children [Child A] aged six years and [Child B] aged four years.
THE PARENTING ORDERS SOUGHT
2The orders sought by the mother are set out in a Minute of Orders Sought within her Papers for the Judicial Officer filed 4 January 2018.
3The orders sought by the father are set out in a Minute of Orders Sought at Trial filed 4 January 2018.
4The mother seeks an order that she have sole parental responsibility for the children, whereas the father proposes that the parties have equal shared parental responsibility for them.
5In summary, the mother seeks orders that during the school term the children live with her and spend time with the father in a fortnightly cycle, in week one, from Wednesday to Thursday and in week two, from Friday to Monday.
6The mother proposes that with effect from 30 April 2018 the children spend time with the father from Friday to Tuesday each alternate week.
7The father proposes that during Terms 1 and 2 in 2018 Child A spend time with him in week one from Wednesday to Thursday and each alternate week from Friday to Monday. With effect from Term 3 in 2018 he proposes Child A spend time with him in week one from Wednesday to Friday and in the alternate week from Wednesday to Monday.
8The father proposes similar arrangements for Child B pending confirmation of his school routine.
9Both parties' minutes contain detailed arrangements for school holidays.
10The mother proposes a gradual increase in time during the holidays, whereas the father proposes the children spend a week at a time with him.
11The father proposes that with effect from 1 February 2019, the children live with the parties in a week about arrangement with school holidays shared.
12Both parties seek orders relating to special occasions, communication and travel. They also seek orders relating to handovers, injunctions, medical issues and education.
BACKGROUND
13The mother is aged 42 years. She is a part-time [secretary]. The father is aged 41 years. He is a consultant and [is employed by a government department].
14The parties commenced cohabitation in January 2008 and married [in] April 2008. They separated on 25 February 2015.
15Child A was born [in] 2012 and Child B was born [in] 2013. The mother and children live at the maternal grandparents' home in [Suburb A].
16The father lives in the former matrimonial home in [Suburb B]. Living with him is his partner, [Ms C] and their daughter [Child C], who was born [in] 2017.
SHORT RELEVANT HISTORY
17When the parties met, the father was employed with a government department.
18In 2009 the father sought counselling with the government department and was approved to attend a cognitive behavioural therapy course.
19In October 2009 the father was [transferred overseas] where he remained until February 2010.
20The mother commenced fertility treatment in November 2009.
21The father deposes that around February 2010 the mother was experiencing panic attacks. The mother deposes in April 2010 she suffered her first and only panic attack and saw a counsellor.
22Both parties depose to difficulties in their relationship. The mother deposes the father lost his temper and had angry outbursts. The father deposes the parties disagreed about financial matters and her refusal to sell her [Suburb C] property was a symbol of her lack of commitment to their marriage.
23After Child A's birth in 2012 the father was [transferred overseas] from April 2012 until August 2012.
24In or about April or May 2013 during an argument the father punched a hole in the laundry door. This occurred in the presence of Child A. The parties had counselling. In December 2013 the father took long service leave from the government department and he took up work with a Perth based company which included fly-in/fly-out work.
25The father deposes to the mother being stressed and angry such that he was concerned for the children's safety. The mother deposes to the father being in a rage and threatening self-harm.
26In August 2014 the father [resigned] from the government department. He worked in the [Middle East] between September and December 2014.
27Both parties depose to a very unpleasant incident at Christmas 2014 when they argued. The following day when the maternal grandmother spoke to the father about this they argued and he asked her to leave the home.
28In January 2015 the father took both children to [Victoria] for a 10 day holiday.
29In January 2015 the mother returned to work part-time and the children attended day care for one day a week.
30When the parties separated on 25 February 2015 the mother and the children moved to the maternal grandparents' home in Suburb A.
31In 2015 Child A commenced attending [School A] for pre-kindy. Sometime later in May 2015 the parties argued about payment of the school fees.
32On 1 May 2015 orders were made by consent providing for the children to spend time with the father, three days a week.
33On 23 October 2015 by consent, [Dr G], Consultant Psychiatrist was appointed as Single Expert Witness to assess whether the father posed a risk to the children. He provided the report to which I refer below.
34The mother was concerned that there were occasions when the father followed her, and in November 2015 she saw the father near the day care when she collected the children.
35On 22 December 2015 orders were made providing for the children to spend time including one overnight per week with the father. The mother deposes the children were exhausted upon their return, clingy, upset and their behaviour was difficult to manage. The father deposes his relationship with Child B improved dramatically after overnight time was introduced. He also deposes to the children enjoying many activities with him, but Child B was upset at handovers.
36On 16 February 2016 the maternal grandmother did the handover with the father. He said she abused him and used foul language to him in the presence of Child B. The father threatened to obtain a Violence Restraining Order against her after she did this again in May 2016.
37In February 2016 the father commenced his relationship with Ms C.
38In March 2016 Child B was enrolled in a pre-kindy program at School A. The mother deposes the father said he would pay half of the pre-kindy fees but did not do so. The father deposes that in March 2016 the Child Support Agency determined he had a "nil" child support obligation. However, he offered to continue paying child support to the mother under a documented private collect agreement, but the mother refused to sign it.
39In 2016 the children's behaviour caused the mother concern with respect to statements they made which the mother attributed to the father.
40Similarly at this time the father was concerned that the mother said inappropriate things to the children.
41In June 2016 the father's application to travel to Victoria with the children was dismissed.
42On 16 September 2016 [Dr W's] first report was filed and I refer to that below.
43On 7 February 2017 orders were made by consent regarding the children's time with the father to take account of their attendance at school. The orders provided that with effect from 17 April 2017, the children spend time with the father in a two week cycle each Wednesday to Thursday, and each alternate weekend from Friday to Sunday. A similar arrangement with some additional day time was ordered during school holidays.
44On 11 May 2017 the mother noticed bruising on Child B. I refer to this below as the "smacking incident".
45On 14 September 2017 Dr W's second report was published.
46During the school holidays at the end of Term 4 in 2017 the children spent time with the father during the day on Tuesdays, Wednesday nights and in alternate weeks from Friday to Sunday.
THE PARTIES AND THEIR WITNESSES
The mother
47The mother has a negative view about the father and does not trust him in relation to his parenting of the children. She is of the view that he must address his issues of anger and frustration. Until he does, she has little confidence that he can adequately parent the children, or that they will be safe from harm if in his care for extended periods of time.
48The mother was cross-examined about this with counsel for the father pointing out that her proposals ultimately involve the children spending time with the father for up to six nights a week. She explained her proposal involves a gradual increase of time. The mother said her proposal represents the amount of time she felt the children could cope with. By 2020, when she proposes they spend six nights in the father's care, the children would be older and she hoped he would be capable of looking after them for that time.
49The mother said she had begun to trust the father, but the trust has now gone as a consequence of the smacking incident. The mother was sincere and I accept her evidence when she said that she could not believe the state of Child B's bottom, and she was in shock at the time. It will be necessary for the father to build up her trust again as a consequence of this incident. I find her position in this respect to be a reasonable one.
50The mother struggled to find much positive to say about the father and his family, in particular the paternal grandfather. She was reluctant to make concessions in the father's favour and for the most part any concessions she made were qualified.
51Overall I considered the mother endeavoured to give honest evidence tempered by her negative view of the father. She is clearly a loving, caring and devoted mother to the children, but she cannot say the same about the father. Her view is that the father's request for shared care of the children is part of his control, and she does not think that he genuinely wants more time with the children. This view was disappointing and I do not accept that is the father's motivation for seeking more time with the children.
Mrs Schianchi
52[Mrs Schianchi] is the maternal grandmother. She is [a dental assistant]. Mrs Schianchi was not an impressive witness. She had nothing positive to say about the father. I do not believe her evidence concerning the incident when she went to the parties' home to assist the mother and confronted the father, who had Child A in the pool that day. When it was put to her that it was a parent's decision about a child in a pool on a hot day she responded that she was the grandparent.
53In some instances Mrs Schianchi answered questions before counsel completed asking them, usually with an emphatic denial of a proposition which was put to her. In cross-examination, counsel for the father asked if she would describe him as a manipulator, cunning and a dangerous man. She agreed with that description of him, but she did not consider she had a dim view of him.
54Mrs Schianchi said the children do not speak about "those people", referring to the father and his family. I doubt her evidence in this respect. I am of the view that little positive is said about the father in the maternal grandmother's home and it is likely that the children have overheard negative things that may have been said.
Ms S
55[Ms S] is the mother's sister. She is a [carer]. Ms S was closely aligned with her sister. I am not convinced that she and her family do not talk about the father to the children unless, as she said, the children bring anything up.
56Exhibit 6 is a bundle of text messages in which Ms S refers to the father using foul language.
The father
57The father is in a de facto relationship with Ms C.
58I consider the father endeavoured to give truthful evidence and for the most part did so. He was not always direct and forthright. An example of this is in relation to the smacking incident. After it occurred the mother sought an explanation from the father. His explanation to her was inadequate and it was not until he filed an affidavit some two months later that he deposed to what had actually happened. His explanation that her request lacked the context of a photograph of Child B's bottom was unconvincing. He had been asked what happened and did not promptly provide a full explanation to the mother.
59A further example of the father not being forthright was in cross‑examination when asked about talking of shooting himself and suicidal ideation.
60Counsel for the mother took the father to various errors in his affidavit. For the most part the errors favoured him, but I am not sure that they were deliberate lies. He conceded that evidence in relation to Child A's enrolment in kindergarten was misleading.
61The father is a loving and devoted father to the children. He loves the children and sincerely believes it would be in their best interests that ultimately they spend equal time with him.
62Dr G reported of the father:
He impressed as a hardworking man, adhering to the values of hard work, stoicism, dedication and strong family values. Indeed, some of his values could be considered as somewhat rigid and old fashioned.
63Dr W agreed with this opinion describing the father as "reactive" and having "a degree of rigidity in how he deals with situations".
64I agree with the assessments of Dr G and Dr W in this respect.
Mr H
65[Mr H] deposes at no time did he say the father was "an angry person" as deposed to by the mother. He deposes the mother manipulated their discussions, and he denied making comments she attributed to him regarding the father's temper or her leaving him. He deposes her statements to that effect are fabricated. Mr H's evidence was unchallenged.
Mr K
66[Mr K] is a psychologist. He provided counselling to the father and also met with both parties in 2013. The father felt his marriage was the main issue and causing the most stress. The mother felt the issues were the father's work-life balance, finances and temper. Mr K denies indicating to the mother that he believed the father had "significant anger management issues" as deposed to by the mother. He also deposes that he did not provide strategies to deal with the father when he blew up. He did not provide treatment for anger management issues, although he discussed stressors such as relationship, financial and house renovation issues which contributed to the father's level of stress. He deposes he was providing a process for both parties to improve their communication. Mr K's evidence was unchallenged.
Mr J
67[Mr J] is a psychologist who knows the father in a professional context, initially as his role as a psychologist supporting the government department, and since 2015 through his [private] practice.
68Mr J deposes that in his opinion the father had not displayed any uncontrolled or overtly aggressive tendencies. He further deposes that given the nature of the government department working environment and the father's length of service, in his view it is highly unlikely any clinical mental health or anger management issues could go undetected.
69The father consulted Mr J for support after the parties' marriage broke down. Mr J is of the view the father does not demonstrate any uncontrolled anger or mental instability and he has seen no indication of the father identifying any self-harm ideation or intent.
70Mr J's evidence was unchallenged.
Mrs Long
71[Mrs Long] is the paternal grandmother. She described the mother as moody, judgmental and said nothing she and her husband or the father did was right during a visit in 2012. She deposes as to the mother's obvious dislike for her, but also said the mother had demonstrated absolute commitment to the welfare of the children. Mrs Long also described the mother as rude and condescending to her and her husband. Since the parties have separated she has spent periods of time in Perth and assisted the father with the children. She describes the father as loving, nurturing and attentive to the children's needs. She said she does not like the mother, but she is a good mother.
72Mrs Long's evidence was unchallenged.
Ms C
73Ms C is the father's partner. Their daughter, Child C was born [in] 2017. She has not looked after Child A and Child B on her own. She deposes they are lovely children and they get along well. She sees herself as supporting the father as his partner in his parental responsibilities. She said in cross-examination she hopes she would have a relationship with the mother in the future.
74Dr W described Ms C as an "asset" to the situation.
75Ms C gave honest evidence. She is a good person to be in the lives of the children.
Dr G
76Dr G is a consultant psychiatrist. He provided a report dated 2 December 2015. Dr G diagnosed there was no evidence of a current psychiatric condition. He opined that the father would not at present, or in the future psychologically, emotionally or physically harm or neglect the children, and there are no reasonable grounds to believe that the children are at risk of such harm in his care either during the day or overnight.
77Dr G considered the father is able to recognise and provide for all of the children's needs and he opined the father is strongly dedicated to providing most optimum care for them. Dr G further reported that there was no evidence that the father's frustration and anger in dealing with issues in the marriage would impact adversely on his parenting role.
Dr W
78Dr W is a clinical and forensic psychologist. He was appointed Single Expert Witness. He provided a report dated 16 September 2016 which was updated by a further report dated 8 September 2017 to which I refer further below. He also gave oral evidence.
79Dr W reported that at the time he met with the parties the mother wanted the father to get treatment and the children's time with him to be restricted for their safety. The father wanted reasonable and meaningful time with the children and proposed increased time leading to equal time on a week about basis.
80Dr W reported that the parties were two dedicated parents who love their children and genuinely want to be involved in their lives, and that both are quite capable of meeting the children's needs. In his first report Dr W recommended a gradually increasing arrangement whereby the children spend time with the father leading up to four nights until February 2018. At that time he suggested that during the school term the time increase by a further night to five nights each fortnight.
81Dr W then suggested about a year later the time could increase by a further night or continue to build up to an equal arrangement, although not week about.
82Dr W recommended that an unequal shared care arrangement is more likely to be in the children's long-term best interests than an equal shared arrangement. If there was to be an equal arrangement that would be when the children are around the age of the start of high school.
83Dr W was asked to provide an updated report in the light of further issues, in particular the smacking incident. The mother continued to be concerned about the father's capacity to parent the children properly, particularly Child B. The father still saw the mother as obstructive and difficult to deal with, and as attempting to keep the children away from him.
84Dr W reported that Child A's development appeared normal, but both parents commented on Child B becoming aggressive. He recommended professional intervention in relation to Child B's behaviour.
85Dr W referred to paragraph 50 of his report in which he said the mother spoke of the father making her feel physically sick. By the time of the second report Dr W reported the mother as being happier psychologically but still demonstrating an intensity of reaction to the dynamics.
86Dr W was of the view that supervised time was not necessary, but that no further overnight time should be introduced.
87Dr W recommended the children live with the parties in an unequal shared arrangement with blocks of time, largely because of Child A's difficulties and the importance of routine to him. Specifically, he recommended a four day block with the father and a 10 day block with the mother. He recommended that the children have visits to the father in the 10 day block, but not overnight.
THE EVIDENCE
88Both parties filed lengthy and detailed affidavits, all of which I have read and considered. Where I do not refer to the evidence of a witness or part of that evidence that is not to say I have not taken it into account.
89The affidavits of both parties annexed numerous annexures, many of which were unnecessary or related to matters not in dispute. At the commencement of the trial counsel agreed that they would identify the annexures of a particular affidavit upon which they relied and those would be noted on the record accordingly.
90Important matters in relation to which the parties were cross‑examined are referred to below.
The parties' communication
91The mother was cross-examined concerning her ability to communicate with the father. It was pointed out to her that in Dr W's first report he reported her as saying that the father was a good person. In evidence she retracted that, saying that as a consequence of his behaviour she did not believe that of him now.
92The mother was asked if she was prepared to sit in the same room as the father and discuss matters concerning the children. She said of the father's attitude that "it was his way or the highway", however she would be prepared to sit with him and mediate.
93The mother is willing to attend medical appointments with the father, for example to discuss Child B's difficulties, but not with Child B present. She did not have much confidence that such communication would be productive, describing the father as overpowering and likely to cut her off if she was trying to speak.
94The mother was taken to various items of communication between her and the father by way of email and text message mostly in 2015. Much of this was courteous and it was put to her that she and the father were able to communicate effectively. She was cautious about making any concessions in this respect, and said that in a particular instance communication might be effective or only some times.
95It was put to the mother that it is the court process which has prevented effective communication between the parties and that the process itself has been destructive. The mother disagreed, saying that the father is a bully and that she found it difficult to work with bullies, but would do her best for the sake of the children.
96In cross-examination about the proposed orders, the father said he was sure the parties could negotiate or liaise about a particular issue by text message.
97While the father may well be motivated with respect to communication with the mother, I am not convinced the mother shares his confidence about that. I do not however think she would be obstructive or uncooperative in this respect. I take this into account when considering the issue of parental responsibility.
The parties' relationship
98The mother said that the father has to be in control and that it was part of his makeup. It was put to her that in fact she "often called the shots" but she disagreed. She conceded she made the decision that the parties would not relocate to the Middle-East saying that she needed her family support due to the father's mental illness which he refused to address.
99The mother said the father controlled the parties' finances. The mother's ownership of the Suburb C property with her sister became a significant issue of contention between the parties.
100The father wanted the mother to sell her interest in the Suburb C property. The mother did not want to do so and sought to retain that aspect of her financial independence. The correspondence between the parties in May 2012 about this was quite telling. At this time the father was working [overseas], he said, for money to keep afloat financially. Child A was only a few months old. The mother wrote to him at a time when she was tired and short of money. Her correspondence was emotional. The father's correspondence was unsympathetic and high-handed. For example the father wrote:
I will not end my life in a third world country so that you can have you [sic] independence instead of embracing our marriage.
101In evidence the father said they could not have one person committing everything and the other person only committing a portion. He acknowledged he got his way and the mother agreed to sell her interest in the property.
102After separation at times the mother dictated the terms on which the children would spend time with the father, objecting to him leaving the children with family members. She could not however give any good reason as to why the paternal grandmother should not care for the children, except to say that she believed Child A had overheard the paternal grandmother saying derogatory things about her. It is no longer an issue that the father leaves the children with his relatives.
103An incident occurred when the father attended the mother's house at handover on 30 May 2015. The father alleged the mother sought to engage him in a discussion regarding school fees in front of the children, she swore at him and slammed the door in his face. The maternal grandmother then yelled at him. The mother said the incident would not have occurred if the father had not thrown Child A's kindergarten fee invoice to her saying he had no money. She said she ended the incident before it escalated. It was put to her that this could not be an example of him bullying, but she said it was.
104A number of other examples were put to the mother as examples of the father not being in control. They were many and varied. The mother maintained her position that the father was controlling during the relationship and she said it became necessary for her to seek assistance for her mental health, partly to extricate herself from the relationship.
105Dr W reported that each party finds the other difficult to deal with. The mother referred to "a constant barrage of issues" in the context of the father, and the father described the mother as obstructive and trying to keep the children away from him.
106Dr W reported at [5]:
This case whilst having had a number of new issues has dynamics relatively similar to how I assessed it previously, namely an intense distrust/fearfulness on the part of the mother, the father wanting to have substantial time with the children, and in the relationship between the two the animosity remains high.
107I agree with Dr W's assessment of the parties' relationship and I take this into account when considering the issue of parental responsibility.
The father's family
108The mother denied acting in a rude and anti-social manner towards the father's parents. She has however a very negative view of his family, describing them as a problem. She contrasted her own family with those of the father and struggled to find any positive attributes of his parents. The mother said she stood up for herself in the presence of the father's family, but the father did not stand up for her.
109The father has a close relationship with his family. Since separation his mother and sister have travelled to Perth frequently to visit him and spend time with the children. The children have a good relationship with them, and it appears therefore that the mother's attitude has not impacted that relationship.
110The father's mother and sister provide valuable assistance to the father. The paternal grandmother has assisted with handovers. Her relationship with the children is to be encouraged.
The father's mental health
111In his first report, Dr W reported the mother's biggest concerns revolved around threats which she interpreted to be suicidal, and the father's mental health being extreme. The basis of the mother's concerns are set out in her trial affidavit where she deposes the father made statements about killing himself during the relationship.
112When asked about this, in evidence the mother said she hoped the father is not a suicide risk, but said he had mentioned killing himself numerous times. She was unable to say whether she accepted Dr W's view that there is nothing to point to serious suicide risk as far as the father is concerned. She described him as highly reactive.
113The father attended the [counselling service] and had sessions with [Ms D] in 2015. Ms D noted the father was overwhelmed by the magnitude of issues arising from the separation and extremely worried about how he would manage and cope. At this time she noted he became emotional and switched to "all or nothing thinking" and made a statement about shooting himself if the outcome went all the mother's way.
114During his second session with Ms D the father became emotional and told her he had experienced suicidal thoughts. She noted his choice of death would be by shooting himself. She went on to note that there are no plans to do so. She believed his suicidal thoughts were reactive and she placed him at moderate risk of causing harm to himself.
115When asked about what he said to Ms D about shooting himself, the father said he made a statement to the effect that he could understand how people would shoot themselves and others in the context of family law proceedings.
116Some of the correspondence between the parties' solicitors has been in strong terms, and it was clear from the father's evidence that he found this confronting.
117The mother deposes the father threatened to harm himself on several occasions during their marriage. She deposes when in a rage he would say things like "he may as well kill himself". She further deposes in August 2014 she found him in a distressed condition and he said "he may as well get his pistol and shoot himself in the head". The father said he did not recall telling the mother he would shoot himself. He said he would make a simple comment of "just shoot me now" which he described as just normal flippant speech. Understandably, the mother did not see it that way.
118I consider the mother's concerns about the father's mental health during the relationship were justified.
119Counsel for the father pointed to further entries in Ms D's notes where she notes there continued to be no risk to the father or others after the session when he was at his lowest, most vulnerable point, and spoke of possible harm to self or others. She stood by her belief that he did not plan to act upon it. Ms D noted in August 2015 that she did not believe he was a risk of harm to himself or others.
120Ms D described the father as upset, frustrated and reactive during the sessions.
121Dr G found no evidence of a current psychiatric condition.
122Dr W reported in his assessment that although the father can be reactive at times, say things that are inappropriate and has a degree of rigidity, there was nothing to point to serious suicide risk, but the idea that at times of stress he may react in "primitive ways" was appropriate.
123The unchallenged evidence of Mr J was that the father had been proactive in getting assistance to address his problems, and would continue to be so.
124Upon the evidence I find that the father is not a risk of harming himself or others, but in the circumstances, the mother's fears were not unreasonable.
The smacking incident
125On 11 May 2017 the mother noticed Child B had markings across his bottom. She described them as red and his bottom was bruised. She deposes it appeared to be a hand print. The mother deposes that Child A told her that Child B had been naughty at the father's home. She said he had scratched the father's car with a fishing knife and, he weed in a bin in his bedroom, not in the toilet. He threw things in the pool, he did not eat his dinner, and he kept getting out of his bed screaming.
126The mother instructed her solicitors to write to the father requiring an explanation of how the injury was sustained. The parties exchanged text messages in which the father told the mother that his mother or sister would not be present during the forthcoming visit. In a subsequent email the father denied that he abused or physically disciplined Child B in an inappropriate manner.
127In the father's response to the mother's solicitor, he said he physically disciplined Child B once for deliberately hitting him in the face with clear intent to cause pain. He described his discipline of Child B as measured and controlled and said on two other occasions Child B had been sent to his room for time-out. The mother had ongoing concerns regarding the father's ability to cope with parenting the children on his own, and how he reacts to them and deals with them. She was dissatisfied with the father's explanation and applied to the Court for the children's time to be supervised.
128It was put to the mother that her fears were a "massive overreaction". The mother disagreed and said she should have reacted faster and taken Child B to the hospital. I consider the mother's fears were understandable and, in the light of the father's inadequate explanation, her reaction was reasonable and appropriate.
129The mother suspended the children's time with the father until he signed an undertaking that their time with him would be supervised by persons acceptable to her. The father signed the undertaking which was filed on 2 June 2017.
130The father's full explanation was provided to the mother only when he filed his affidavit on 7 July 2017 where he deposes as follows:
18. At paragraph 7 of her Form 4 and paragraph 13 of her Affidavit, [Ms Schianchi] further alleges that [Child A] told her that I smacked [Child B] on 3 separate occasions. I very rarely physically discipline either child. I physically disciplined [Child B] once, with three strokes of my hand, on the evening of 10 May 2017:
(a)I had been sitting on the lounge with [Child A] in my lap. [Child B] was playing with his toys on the floor.
(b)At one point, [Child B] came over to us and deliberately swung his arm, reaching from behind his back, to hit me in the face as hard as he could. He then asked, "did that hurt?" with a smile on his face.
(c)I moved [Child A] to the side of the couch to discipline [Child B]. I smacked him once and asked him "did that hurt?" When he said "yes" I asked him why he had hit me, his reply was "because I wanted to".
(d)I smacked him a second time and asked, "why do you think I smacked you", he replied "because I hurt you".
(e)I told [Child B] that it is not acceptable that he hit or hurt other people. I smacked him a third time and sent him to his room.
(f)[Child B] again screamed that he wanted to come out of his room and that he would "tell on me".
131The father agreed to supervised time and Dr W was asked to provide an updated report concerning the incident. The father discussed Child B's behaviour with Mr J, and implemented his recommendations for modifying his parenting style with Child B to be more emotionally supportive.
132In response to a notice of abuse or risk of abuse filed by the mother, the Department of Communities provided its assessment dated 3 August 2017. The Department assessed that the photographs of Child B were inconclusive and it was difficult to determine how the marks may have occurred. The Department noted there were no medical or independent sources to verify the marks. The Department, having made a preliminary assessment, was of the view that the concerns expressed in the notification did not require further action.
133The mother pointed out that the Department did not refer to her having sought medical attention for Child B.
134In relation to the smacking incident, Dr W reported that the mother saw it as an example of the father losing control. Dr W found it to be quite measured, but touched with anger and frustration. Dr W was not concerned about the loss of control, but by the father hitting Child B to show him not to hit people. He described this as a very old style of thinking and a lack of insight into what it models.
135Dr W reported that the father denied he hit hard enough to bruise him and Dr W went on to say in his report, "I would suggest that the photographs show otherwise". Dr W acknowledged he was not a forensic pathologist and that this was an opinion he was not qualified to give.
136The mother described the smacking incident of Child B as a "game changer forever" and I accept for her it was.
The washing machine incident
137In November 2017 the father communicated with the mother regarding the delivery of a washing machine and Ikea chairs. The mother had asked for these items in February 2016. On 27 November 2017 he wrote to her solicitors regarding delivery of the items and stated if she did not want them he would dispose of them. The mother did not respond. On 30 November 2017 the father left the washing machine and chairs at the maternal grandparents' home, although he said he did not know the mother would not be home when he delivered them. Child B was with him at the time.
138The mother's counsel pointed out that the parties had agreed some two years earlier that the mother would take the items and then without agreement as to date or time, some two years later the father delivered the items to her house. When asked about this the father merely said the mother requested the items and he delivered them. He disagreed that it was a bad idea to turn up at her parents' home unannounced, and said he had to take Child B with him because Child B was in his care. When asked why it had to be that morning, the father said the imperative was based on his availability.
139I was provided with a CD containing the footage of the security system at the maternal grandparents' home. It shows the father driving up to the home and leaving a washing machine and chairs at the front of the house. It also shows the mother's sister coming out of the house. Ms S was clearly angry and she rolled the washing machine down the drive. The paternal grandfather also came out of the house. Words were exchanged mostly by Ms S. This was upsetting for Child B who became distressed before the father put him in the car and drove away. When asked if this was an aggressive action taken in front of Child B, Ms S said she could not speak for Child B.
140This incident does not reflect well on the father or Ms S for exposing Child B to this conflict.
O's party
141The father texted the mother on 23 February 2016 to say he wanted to take Child A to [O]'s party. The mother responded that it was a girls‑only party and he was not invited. The father considered his attendance important because the party was in his allocated time and it was his first opportunity to attend a party with Child A. He said he was not aware that the hosts of the party were friends of the mother, although in cross‑examination he was asked if he had not got the hint. On 25 February 2016 the father wrote what he described as an appropriate letter to [Ms A], O's mother introducing himself and enquiring about the party.
142On 26 February 2016, Ms A responded and informed him that she was good friends with the mother and her family, and had invited them to the party. She said she would not feel comfortable having them all in her home on O's day. Child A attended the party. The father did not take her.
143The father said he now has a good relationship with Ms A and he respected her wishes.
144This incident was put to the father in the context of suggesting that he was inflexible and that it took eight emails to resolve the issue. The father disagreed and described his actions as mature and an example of him doing the best he could.
145This is an example of the father's determination. On this occasion his correspondence was courteous and appropriate and I accept that attending the event with Child A was important to him.
Recommended programs
146In Dr W' first report he recommended that the father attend the Anglicare Changing Tracks course or Relationships Australia FAIR program, and that he continue to see his psychologist at least monthly.
147The father does not accept he should attend a program. He explained he had attended Relationships Australia and had done the intake session of the Changing Tracks course. He was put on a list, but was low priority as it had not been Court ordered.
148Dr G reported that the father had attended the Ngala program for Guidance in Children's Behaviour, Relationships Australia Dad's Raising Girls program and also the Mums and Dads Forever course.
149Dr W also recommended both parties undertake the One, Two, Three Magic course. The father did so. The mother had done the course some years earlier and considered it was not necessary for her to do it again.
150Mr J does not consider the Anglicare or Relationships Australia programs would be of benefit to the father. From January 2017 to July 2017 the father initiated and participated in a tailored psychological education program with Mr J, aimed at assisting him develop additional adaptive coping skills. The program was developed from key themes identified from the reports of Dr G and Dr W as well as the father's self-assessment and areas of development identified by Mr J which included frustration, tolerance, mood regulation, stress management and flexible mindset.
151Mr J deposes at paragraph 14:
[Mr Long] actively participated in the program and diligently completed ancillary tasks and activities. [Mr Long] has an excellent level of lay‑understand [sic] relating to the aforementioned topics and he is motivated to continue seeking opportunities to develop personally. [Mr Long] is able to effectively manage vey [sic] high levels of stress, regulate his mood and modify his mindset in order to manage frustrations.
152Dr W noted that the father was highly motivated, but having done that program "has still ended up in this position". That is, the smacking incident occurred and the father has still ended up with an attitude towards physical discipline in which "he still justifies it as appropriate because it works". However, Dr W said the father did also concede that he is looking at other strategies and has found some things which seem to be working better for him. Dr W described this as beneficial and far healthier for the children.
153I do not consider it necessary for the father to attend any programs. He should however continue to engage with his psychologist, who should be provided with the reports of Dr G and Dr W, and these reasons. My primary reason for this is the father's inappropriate disciplining of Child B, noting that this occurred while the father was participating in Mr J's program.
Medical issues
154It was not in dispute that the children had attended [Medical Centre A] since their births.
155In July 2017 the father took Child B to a doctor for tests to investigate his constipation, which the mother said had been an ongoing issue since May 2017, and which she was managing. The mother had received medical advice from [Dr I] at Medical Centre A.
156The father explained Child A had woken up in pain and said his tummy hurt. He said he immediately went on to the Health Engine App to get the first appointment he could, which was at the [Medical Centre B]. He obtained that appointment within 15 minutes. The doctor examined Child B and recommended an x‑ray. The father then informed the mother. The father later found out that Child B had a bowel movement the day before, but said at the time the doctor shared his concern for bowel obstruction.
157The mother deposes Child B is still traumatised by the doctor's examination.
158In cross-examination the father readily agreed that it would be desirable that the children continued to attend Medical Centre A, except perhaps in the case of emergency, when they may need to attend upon a different medical practitioner.
Child B's behavioural difficulties
159In Dr W's second report he referred to Child B falling outside the band of normal behaviour and described his as hyperactive. Dr W reported Child B should be reviewed by a paediatrician and also an experienced psychologist, and when he turns six years of age it would be appropriate to apply formal testing.
160Dr W reported a large proportion of Child B's problems are on the ADHD/cooptive domain, and specifically the attachment relationship or trauma.
161The mother had consulted [Dr P], Psychologist in relation to Child B's behavioural issues as recommended by Dr W. The father met briefly with Dr P but she would not discuss Child B with him as she was seeing the mother and was not prepared to see both parties.
162In evidence Dr W said that Child B is not too young to see a paediatrician, or for the parties to obtain help from a psychologist. Dr W said if Dr P was not prepared to see both parties, then Child B should see a psychologist who is prepared to work with both parties.
163Dr W said Child B's needs should to be looked at and managed jointly. Dr W stressed the need for consistency in both families and that both parties need to implement similar strategies in dealing with his behaviour. He said Child B needs good management.
164Dr W said Child B will be a handful and that both parents should be getting the same help.
165Dr W's assessment of Child B and his difficulties was relevant to the amount of time the children should spend with the father, in that a more predictable and balanced routine would be beneficial.
166Dr W reported that he was not overly convinced of the father's supportiveness of psychological intervention, and that in his opinion the mother should make the appropriate choices but advise the father. In other words, she should have responsibility for making decisions about the psychological treatment of Child B, although his psychological needs should be managed jointly.
THE LAW
167These proceedings are determined under Part VII of the Family Law Act 1975 (Cth) ("the Act"). In reaching my decision I will be guided by the objects of that Part and the principles underlying those objects as set out in s 60B.
168The objects are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
169In deciding whether to make a particular parenting order, s 60CA directs the Court to regard the best interests of the child as the paramount consideration. Section 60CC sets out those matters which the Court must consider in determining what is in the child's best interests.
Parental responsibility
170Pursuant to s 61DA of the Act, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the child's best interests for the parents to have equal shared parental responsibility for the child.
171Equal shared parental responsibility imposes an obligation upon them to consult as to major long-term issues regarding the child and to make a genuine effort to come to a joint decision about such an issue.
172Pursuant to s 65DAA of the Act, a consequence of making an order for equal shared parental responsibility is that the Court is required to consider whether or not the child spending equal time with each parent would be in the child's best interests and reasonably practicable. If so, the Court must then consider making such an order.
173If the Court decides that an order for equal time would not be in the child's best interests or would not be reasonably practicable, the Court is required to consider whether or not the child spending substantial and significant time with each parent would be in the child's best interests and reasonably practicable. If so, the Court must then consider making such an order.
174The presumption does not apply in circumstances where there is abuse or family violence. The presumption may be rebutted by evidence which satisfies the Court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility.
175I shall consider what orders shall promote the best interests of Child A and Child B.
PRIMARY CONSIDERATIONS
the benefit to the child of having a meaningful relationship with both of the child's parents
176Child A and Child B have a meaningful relationship with both of their parents and it is to their benefit that it continues.
the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence
177There is not a need to protect the children from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence. Dr W reported and I accept that both parents are dedicated parents who love their children and genuinely want to be involved in their lives. He further reported that he saw no likelihood of either parent doing things deliberately to harm the children, and he said they were not at risk of harm in the care of either parent.
ADDITIONAL CONSIDERATIONS
any view expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views
178The children are only six and four years of age. They are too young to express a meaningful view. The mother says Child A has become increasingly upset over the past six months and has regularly stated that she wants to see her dad, but does not want any more time with him.
179The father deposes that Child B asks him several times during each day if he is returning to the mother that day, and when he is told he is staying overnight with the father, he says "hurray" or similar. The father also says that Child B can be resistant to returning to the mother on Sundays. The father believes Child B's difficulties could be due to his resentment of his limited time with the father and the lack of consistency in the care routine.
180Dr W reported that he saw the children on 31 July 2017 and they were seen individually as well in the group. Dr W reported that Child A's attitudes around both parents seemed positive and happy, and that she enjoyed her time with both of her parents.
181Child B spoke of liking being with the mother. He also liked being with the father, but he did not want longer time with him.
182I accept the children enjoy their time with both parents.
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)
183The children have a close and loving relationship with both of their parents. Dr W reports that they enjoy their relationship with their mother and they have a solid attachment with the father notwithstanding his absence from them for periods of time. The children get on well with Ms C and are coping with the addition of Child C to the father's family.
184The children have a close relationship with relatives on both sides of their family including the maternal grandparents and aunt with whom they live. The paternal grandmother and paternal aunt spent significant periods of time staying at the father's home after the parties separated.
the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child
185Both parties have participated in making decisions about major long‑term issues in relation to the children, although the father wants a greater involvement in this aspect of their care. Both parties have spent time with the children and communicated with them, although the father wants to spend more time with them and says the mother has limited his communication.
186Both parties have fulfilled their obligations to maintain the children although the mother's positon is that the child support paid by the father of $62 per week is inadequate.
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
187Currently the children spend four nights each fortnight with the father from Wednesday to Thursday in each week and from Friday to Sunday each alternate weekend. The orders sought by the father involve an increase in their time with him. Those sought by the mother do not.
188Of importance is Dr W's assessment of Child B. Dr W opined that changing routines may not provide for stability for Child B, and consideration should be given to more structured blocks of time rather than short frequent rotating blocks of time.
189The mother reported to Dr W that the children had done better when their visits to the father had stopped, as life had become more predictable for them. Dr W also noted the children like their time with the father.
190The children, particularly Child B, will benefit from stability and predictability in their living arrangements. Dr W suggests that they spend a continuous four day block with the father and 10 days with the mother in each fortnight. This is a change in their circumstances which he anticipates would be beneficial to them. This is an important matter to be taken into account when considering the orders for the children's living arrangements which are in their best interests.
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
191The parties live close to each other. There is no practical difficulty and expense involved in the children spending time with and communicating with a parent.
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
192The mother is capable of providing for the children's needs on all levels. I am satisfied she is a caring and competent parent. My only concern with respect to the children's emotional needs in the care of the mother is any denigration of the father which may occur in her home, if not by her but her family members.
193The father is capable of providing for the children's needs. I consider he did not however provide well for the children's emotional needs when he disciplined Child B as described above. Furthermore the father did not provide well for Child B's emotional needs when Child B accompanied him to deliver the washing machine to the maternal grandparents' home. While the father may say he did not anticipate conflict, it occurred and the entire incident could and should have been avoided.
194I am satisfied that the father has taken steps to deal with his reactivity. It is possible Child B's behaviour may present challenges to both parties in the future and it will be necessary for the father to ensure that he reacts to those situations appropriately.
the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant
195Child B has the behavioural difficulties referred to by Dr W.
if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right
196This consideration is not relevant.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
197The children's relationship with each of their parents is a close and loving one. This would suggest that neither parent has deliberately undermined the children's relationship with the other.
any family violence involving the child or a member of the child's family
198There was family violence between the parties. The mother deposes to the father flying into a rage on a number of occasions. It is not in dispute that an incident occurred in 2013 when the father punched a hole in the laundry door.
if a family violence order applies, or has applied, to the child or a member of the child's family – any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter
199There is no family violence order in effect.
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
200I consider it would be in the best interests of the children that I make orders which are least likely to lead to the institution of further proceedings, and that these proceedings should be concluded with final orders.
any other fact or circumstance that the court thinks is relevant
201By reason of the concern I have expressed regarding the father's disciplining of Child B, I am of the view that the father should continue to receive assistance from Mr J or other psychologist consulted by him as recommended by that psychologist.
202The mother does not trust the father and I find her position to be understandable having regard to the father's discipline of Child B. The father will have to regain her trust and demonstrate he is able to deal appropriately with difficulties, which may lie ahead with respect to Child B's behaviour.
203Dr W recommends that Child B be seen by a paediatrician and also an experienced psychologist as soon as possible. I am unsure if the parties have arranged this. If they have not it should be done forthwith, and if necessary I will order to that effect.
CONCLUSIONS
204Having considered all of the evidence in the context of the primary and additional considerations I have come to the following conclusions.
Parental responsibility
205The presumption that it is in the children's best interests that their parents have equal shared parental responsibility for them does not apply as there has been family violence between the parties. Notwithstanding that, I am of the view that it is in the best interests of the children that their parents have shared parental responsibility for most, but not all long-term issues. Counsel for the mother submitted that she should have sole parental responsibility in relation to educational matters. I do not agree. I consider that the parties should share the decision making in this respect. They do not disagree fundamentally on the children's education, just on how it is to be paid for. The father wishes to be involved in the children's schooling and I consider he should be, so that both parties take the same approach to this aspect of the children's care.
206In all but medical issues I consider the parties should jointly make decisions. Both are competent, caring parents who have much to offer the children.
207In relation to medical issues, I consider that the need to address Child B's difficulties is of such importance that it should not be delayed or obstructed by the inability of the parties to reach agreement. I take into account the mother finds the father difficult to deal with, and I also take into account his determination and the extent of correspondence between the parties on issues in the past.
208Dr W is of the view that Child B requires prompt psychological assistance and is not convinced of the father's supportiveness of psychological intervention. It is of the utmost importance that both parties are involved in addressing Child B's difficulties. In the circumstances I consider the appropriate decisions in that respect should be made by the mother. The father is to be provided with all relevant information and promptly informed of any decisions made and the reasons therefore. He is to be actively involved in dealing with Child B's issues as it is imperative both parents have the same approach. Both parties should attend upon the paediatrician or other professional who may treat Child B.
209Having regard to the parties' difficulties in communication and the need for medical issues to be dealt with promptly, I intend to order that the mother have sole parental responsibility for making decisions about the children's health. I have not confined this to Child B's difficulties. I am mindful that the mother referred to a "constant barrage of issues" from the father, and she described him as a bully. My intention is to avoid difficulties in decision making about this important issue. Such an order should also avoid confusion as to what is or is not to be a joint decision. The mother should promptly inform the father of any decisions made, and he should be provided all relevant information and permitted to attend upon the professionals treating the children.
The children's living arrangements
210In my view Dr W's recommendation that the children live with the father four nights and with the mother for 10 nights in each fortnight is soundly based. He also recommended that the children spend some daytime with the father in the 10 day block. I intend to make orders in terms of his recommendation because I accept that both children, but particularly Child B, will benefit from stability in their living arrangements and a predictable routine. This is the arrangement which should be implemented during the school term.
211During the school holidays, routine is perhaps slightly less important and the holidays are an opportunity to maximise the children's time with the father. The children should spend gradually increasing periods of time with the father, until the children's time during the school holidays is shared equally with their parents.
212An arrangement which I consider to be in the best interests of the children is that they spend a period of five nights with the father in the school holidays at the end of Terms 2 and 3 in 2018, and periods of six nights with him in the school holidays at the end of Term 4 in 2018. Thereafter, commencing with the holidays at the end of Term 1 in 2019, they spend periods of seven nights with the father. With effect from the school holidays at the end of Term 4 in 2019 the children's time be shared equally with their parents, but in all holidays at the end of Term 4 that be on a week about basis subject to paragraph 213 below.
213It is likely that the children would benefit from a period of time with each parent to enable them to travel. This is most likely to occur in the school holidays at the end of Term 4. I consider those holidays should be shared on a week about basis, but in the school holidays at the end of Term 4 in 2019, the children should spend a period of up to 10 days with each party. By the school holidays at the end of Term 4 in 2020, the children may spend a period of up to 14 days with each party. It is appropriate that each party give the other notice of their intention in this respect. It is also always open to the parties to agree a different arrangement.
Miscellaneous matters
214The parties are unable to agree about the children's time on some special occasions. The mother proposes that the period between Christmas Eve and Boxing Day be shared between the parties in alternate years. The father would like an opportunity to take the children away at Christmas and in particular the opportunity to spend Christmas with the children and his family in Victoria.
215The children are still young and are likely to enjoy and benefit from spending time with both of their parents at Christmas. The father wants an opportunity for the children to spend time with his family at Christmas, and I accept that they are likely to enjoy a trip to Victoria and share that special time with paternal relatives. I consider that for the next few years at least, the children should see both parents at Christmas. The father is not precluded from taking the children to Victoria during the school holidays, but not at Christmas time. That is not to say there cannot be changes to the Christmas arrangements in the future. I consider however that first and foremost the children's time should be with both of their parents, at least until they are older.
216Similarly I consider the children's time at Easter should be shared by the parties. There is ample opportunity for the father to take the children away camping in the periods of time they will spend with him in the school holidays. The children's birthdays should also be shared as this is most likely to be an arrangement the children will enjoy, having an opportunity to see both parents on those special days. I note however that both children's birthdays fall during the school holidays at the end of Term 4, and therefore this order will only take effect if the children are resident in Perth on the days of their birthdays.
217The parties agree the arrangements for Mother's Day and Father's Day. I shall order that the children spend time with the mother from 5.00 pm on the Saturday before Mother's Day until 5.00 pm on Mother's Day, and with the father from 5.00 pm on the Saturday before Father's Day until 5.00 pm on Father's Day.
218ANZAC Day is important to the father and it would be beneficial to the children to share this important day with him.
219As to handover, the parties agree that the father will collect the children from school or the mother's residence at the commencement of his time, and she will collect them from school or the father's residence at the conclusion of their time with him.
220I shall make an order that both parties be at liberty to authorise any other person to collect the children on their behalf, noting that it is likely that in the case of the father that Ms C or a member of his family will do so.
221As to miscellaneous special occasions such as extended family members' birthdays, the mother seeks an order for spending time, although the father is of the view that the parties should liaise about this. I consider the order proposed by the mother as to miscellaneous special occasions should be made provided the children are resident in Perth at the time.
222I shall make the non-denigration orders sought. I consider them to be entirely appropriate.
223I shall order that on a without admission as to need basis, both parties be restrained from physically disciplining the children. The mother is of the view that order should include the words "with excessive force". I consider it inappropriate that the parties physically discipline the children at all, given the level of distrust on the part of the mother as to the father's ability to manage the children's behaviour.
224I consider it to be in the best interests of the children to make orders for the provision of information, including contact details.
225It is important and in the best interests of the children that the parties keep each other informed of medical issues, and although the mother will make the final decision with respect thereto the father must be involved in the treatment proposed.
226The children should have liberal communication with the parent with whom they are not living. I propose to order that there be communication on each alternate day, with the parent seeking the communication to initiate the call between 6.30 pm and 7.30 pm. The children should also be permitted to contact the parent with whom they are not living in accordance with their wishes. I consider this to be an arrangement which enables the children to settle with the parent with whom they are living or spending time but also to maintain regular contact.
227As to travel, the children should have the opportunity to travel interstate and overseas with each of their parents. In the case of interstate travel, that travel should occur during the time the children are living with each of them, and the parent travelling should give appropriate notice to the other parent. In the event of travel out of the Commonwealth of Australia, that should only to be a country in relation to which DFAT has not issued a "do not travel" warning, and appropriate information regarding the travel should be given to the non-travelling parent. Makeup time should not be necessary as the travelling parent should travel within the time the children are spending with each of them, unless otherwise agreed.
THE PROPOSED ORDERS
228Subject to hearing from counsel, the orders I propose to make are as follows:
1All previous parenting orders be discharged.
Parental responsibility
2The mother, [MS SCHIANCHI] have sole parental responsibility for making decisions about the health of the children, [CHILD A] born [in] 2012 and [CHILD B] born [in] 2013 ("the children").
3Subject to order 2 above, the father, [MR LONG] and the mother have shared parental responsibility for making decisions about major long-term issues concerning the children.
4Unless contrary to the children's immediate welfare, the father and the mother shall, before making any major long-term decision about the children:
(a)consult with each other in writing setting out any major long-term decision making proposal and the reasons for that proposal;
(b)give proper consideration to the proposal and respond in writing in a timely manner, making a genuine effort to resolve any issues; and
(c)in the event any dispute is unable to be resolved, the parent making the proposal shall consult with a Family Dispute Resolution practitioner and invite the other parent to attend in an effort to resolve the dispute.
Living and spend time arrangements during school terms
5During the school terms the children shall live with the parties in a fortnightly cycle as follows:
(a)with the father in Week 1 from 3.00 pm or after school on Friday until 8.30 am or before school on Tuesday;
(b)with the father in Week 2 from 3.00 pm or after school to 6.30 pm on Thursday; and
(c)with the mother at all other times.
Living arrangements during school holidays
6The children shall spend time with the father for five nights during the holidays at the end of Terms 2 and 3 in 2018. In the absence of agreement the children's time with the father shall commence at 9.00 am on the Saturday immediately after the conclusion of the school term and conclude at 5.00 pm the following Thursday.
7The children shall spend time with the father for six nights each fortnight during the holidays at the end of Term 4 in 2018. In the absence of agreement the children's time with the father shall commence at 9.00 am on the Saturday immediately after the conclusion of the school term and conclude at 5.00 pm the following Friday and thereafter each alternate week.
8During the holidays at the end of Terms 1, 2 and 3 in 2019, the children shall spend time with the father for a period of seven nights. In the absence of agreement the children's time with the father shall commence at 9.00 am on the Saturday immediately after the conclusion of the school term and conclude at 5.00 pm the following Saturday.
9During the holidays at the end of Term 4 in 2019, the children shall spend time with the parties for half of the holidays on a week about basis commencing the first week with the father in 2019 and each alternate year thereafter. During the said holidays the children shall spend one period of 10 nights with each party at times to be agreed between the parties.
10During the holidays at the end of Terms 1, 2 and 3 in 2020 and thereafter the children shall spend time with the father during the first half of each holiday period and with the mother during the second half of each holiday period unless otherwise agreed between the parties in writing.
11During the holidays at the end of Term 4 in 2020 the children shall spend time with the parties for half of the school holidays on a week about basis commencing the first week with the mother in 2020 and each alternate year thereafter. Thereafter during the holidays at the end of Term 4 the children shall spend one period of 14 days with each party at times to be agreed between the parties.
12The operation of orders 5 to 11 above be suspended and each party shall provide the other with not less than 21 days' notice of the 10 or 14 day period of time which they propose to spend with the children pursuant to orders 9 and 11 above.
Special occasions
13The children spend time with the parties on special occasions as follows:
(a)at Christmas in 2018 and each alternate year thereafter from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day with the father and from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day with the mother;
(b)at Christmas in 2019 and each alternate year thereafter from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day with the mother and from 3.00 pm on Christmas Day until 3.00 pm Boxing Day with the father;
(c)at Easter in 2019 and each alternate year thereafter from 10.00 am on Good Friday until 10.00 am on the Easter Sunday with the mother and from 10.00 am on Easter Sunday until 10.00 am Easter Tuesday with the father;
(d)at Easter in 2020 and each alternate year thereafter from 10.00 am on Good Friday until 10.00 am on the Easter Sunday with the father and from 10.00 am on Easter Sunday until 10.00 am Easter Tuesday with the mother;
(e)provided the children are resident in Perth, on the children's birthdays in 2018 and each alternate year thereafter from 8.30 am until 1.30 pm with the father and from 1.30 pm until 6.30 pm with the mother or such other times as may be agreed from time to time;
(f)provided the children are resident in Perth, on the children's birthdays in 2019 and each alternate year thereafter from 8.30 am until 1.30 pm with the mother and from 1.30 pm until 6.30 pm with the father or such other times as may be agreed from time to time;
(g)on Father's Day from 5.00 pm on the Saturday before Father's Day until 5.00 pm on Father's Day with the father;
(h)on Mother's Day from 5.00 pm on the Saturday before Mother's Day until 5.00 pm on Mother's Day with the mother;
(i)on ANZAC Day from 3.00 pm or the end of school (as applicable) on 24 April until 5.00 pm on 25 April with the father; and
(j)on such other occasions from time to time as may be agreed between the parties in writing.
14Provided the children are resident in Perth at the relevant time, the children spend time with the parties for the purpose of miscellaneous special occasions, including but not limited to grandparent birthdays, partner/spouse birthdays, weddings, on such terms as may be agreed between the parties from time to time and subject to giving the other parent at least 14 days' notice of the special occasion with the person requiring the children's attendance at the special occasion to be solely responsible for picking up and returning the children to the parent with whom they are then living or spending time with.
Variations
15The mother and the father shall be at liberty to have the children live or spend time with each of them other than as set out in these orders and are at liberty to vary these orders, provided such variations are agreed in writing.
Handover
16For the purpose of these orders the father shall collect the children from school or the mother's residence at the commencement of his time with them, and the mother collect the children from school or the father's residence at the conclusion of the father's time with them.
17Both parties be at liberty to authorise another person to collect the children at the commencement of his or her time, and return the children at the conclusion of his or her time, provided that person is known to the children.
Injunctions
18On a without admission as to need basis the parties be restrained and an injunction be granted restraining the parties from:
(a)denigrating the other parent, the other parent's partner or any other member of that parent's family or permitting any other person to do so within the child's presence or hearing, or permitting any third party to do so; and
(b)discussing these proceedings with the children or within their earshot or permitting any other person to do so.
19On a without admission as to need basis the parties be restrained and an injunction granted restraining each of them from physically disciplining the children.
Medical issues
20The parties consult with each other in relation to the investigation of significant health issues pertaining to either or both children.
21The mother shall promptly inform the father of any decision made by her regarding the children's health.
22The parties keep each other informed of the names and addresses of any treating medical practitioner, other health practitioner and/or dental practitioner in relation to the children.
23Both parties provide all required authority and consent to each treating medical practitioner, other health practitioners and/or dental practitioners to discuss and provide both parties with reports as to the health of the child and other information they are lawfully allowed to provide in relation to the child.
24The parties shall advise each other as soon as possible in the event that either or both of the children are either seriously ill or injured or otherwise hospitalised.
25The parties have permission to visit the children at any time in hospital in the event they are hospitalised.
Communication
26The children shall have telephone or electronic communication with the parent with whom they are not living each alternate day but not on a handover day.
27The parent seeking the communication shall initiate the call between 6.30 pm and 7.30 pm.
28The parties shall permit the children to telephone the parent with whom they are not living in accordance with their wishes.
29The parties communicate via SMS and email with respect to genuine issues pertaining to the children.
Education
30The children do attend [School A] until the conclusion of Year 6.
31The parties do all things necessary to enrol the children at [School B] for secondary school.
32Both parties shall provide any required authority and consent to any day care/school attended by the children to allow both parties to undertake parent/teacher interviews, discuss the education of the children, forward to both parties copies of all school reports and notices concerning activities to be undertaken by the children, and to permit both parties to attend any school or extracurricular activities that parents are invited to attend.
Overseas & inter-state travel
33If either party wishes to take the children out of the State of Western Australia that party ("the travelling party") must provide at least 28 days' notice in writing to the other party ("the non-travelling party"), together with a copy of the proposed itinerary, address and telephone contact details (whilst abroad) and proposed flight/travel details.
34If either party wishes to take the children out of the Commonwealth of Australia, and subject to order 12 above, the following provisions apply:
(a)that party ("the travelling party") must provide at least 28 days' notice in writing to the other party ("the non-travelling party"), together with a copy of the proposed itinerary, address and telephone contact details (whilst abroad) and proposed flight/travel details;
(b)the travelling party shall provide the non‑travelling party with the confirmed itinerary, address and telephone contact details (whilst abroad) and confirmed flight details at least 14 days prior to departure; and
(c)if the non-travelling party is unable to spend time they would ordinarily spend with the children as a result of such international travel, then they shall be entitled to makeup time as soon as reasonably practicable upon the children's return to Australia.
35The parties be restrained by injunction from removing the children from the Commonwealth of Australia to a country in relation to which DFAT has issues a travel warning stating "do not travel".
36Each party shall sign a passport application or passport renewal for the children within 14 days of a written request of the other party to do so, subject to any court order to the contrary.
37The children's passports shall be held by the mother and be provided to the father for the purpose of any international travel within 14 days of a request in writing by the father, and returned to the mother within seven days of the children's return to Australia.
Miscellaneous
38The parties be at liberty to provide a copy of these orders to any day care or educational facility attended by the children.
39The father shall attend counselling with a psychologist in accordance with the practitioner's recommendation.
40The father shall provide his psychologist with copies of these reasons and these orders.
41All extant applications otherwise be dismissed.
42All 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.
43In relation to material tendered as an exhibit into evidence in these proceedings:
(a)all parties must collect the exhibits tendered by them ("their exhibits"), from the chambers of Justice Duncanson, at least 28 days, and no later than 42 days, from today's date;
(b)all parties must contact the chambers of Justice Duncanson to arrange the collection of their exhibits; and
(c)in default of compliance with subparagraph (a), all material tendered as an exhibit, save and except for material produced pursuant to subpoena, will be destroyed by the court without notice to the parties.
44In the event of an appeal being lodged prior to the expiration period of 42 days, paragraphs 42 and 43 above do not apply.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
RM
ASSOCIATE24APRIL 2018
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