SHELLEY and DICKENS
[2020] FCWA 52
•3 APRIL 2020
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: SHELLEY and DICKENS [2020] FCWA 52
CORAM: TYSON J
HEARD: 10, 11, 12, 13, 14 and 19 JUNE 2019, 27 and 29 NOVEMBER 2019 and 20, 21, 22 and 23 JANUARY 2020
DELIVERED : 3 APRIL 2020
FILE NO/S: PTW 6930 of 2011
BETWEEN: MS SHELLEY
Applicant
AND
MR DICKENS
Respondent
Catchwords:
FAMILY LAW – CHILDREN – Best interests – Where the mother alleges the child has been physically and sexually abused by the father – Where the mother alleges the father presents an unacceptable risk of harm to the child – Where the father alleges the child is at risk of harm and neglect in the care of the mother – Where the evidence does not support a finding that the father poses an unacceptable risk of harm to the child – Where the mother has not complied with orders to facilitate the child spending time with the father – Where there are questions about the mother’s capacity to facilitate a meaningful relationship between the father and the child – Where there is a risk of ongoing psychological harm to the child in the mother’s care – Where consideration is given to change of child’s living arrangements - Interim orders only made - Where the child will continue to live with the mother and spend substantial and significant time with the father – Where orders made for ongoing appointment of the Independent Children’s Lawyer and for reportable counselling for the child and each parent - Case turns on its own facts
Legislation:
Family Court Act 1997 (WA)
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Calverley Johnston Family Lawyers |
| Respondent | : | Self-Represented Litigant |
| Independent Children's Lawyer | : | Ms A until 27 November 2019 |
| Independent Children's Lawyer | : | Ms Korzeniecka from 29 November 2019 |
Solicitors:
| Applicant | : | Ms U |
| Respondent | : | Self-Represented Litigant |
| Independent Children's Lawyer | : | Hickman Family Lawyers |
| Independent Children's Lawyer | : | Platinum Legal |
Case(s) referred to in decision(s):
Banks & Banks (2015) FLC 93-637
Bondelmonte v Bondelmonte (2017) 259 CLR 662
Fox v Percy (2003) 214 CLR 118
M v M (1988) 166 CLR 69
Re F Litigants in Person Guidelines (2001) FLC 93-072
Stott & Holgar [2017] FamCAFC 152
Thornton & Thornton [2015] FamCA 92
TYSON J:
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
IT IS NOTED that publication of this judgment by this Court under the pseudonym Shelley & Dickens has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).
1These proceedings concern [G]. G’s parents [Ms Shelley] [(“the mother”)] and [Mr Dickens] [(“the father”)] had a short relationship, which ended when G was 18 days old. Since then, G has lived with the mother and spent limited time with the father, for reasons that are in dispute. The mother and the father each seek G live with them.
2The mother’s case is that the father has physically, sexually and emotionally harmed G and he poses an unacceptable risk of harm. She says the father has perpetrated significant and sustained family violence towards her during their relationship. The father’s case is that the mother has emotionally and psychologically harmed G, by fabricating and repeatedly raising false allegations against him, by failing to comply with orders to facilitate G’s relationship with him and through her failure to adequately provide for G’s needs in terms of her education and health. He alleges he was the victim of family violence perpetrated by the mother.
3Each parent largely denies the allegations of the other. The parties agree their relationship involved family violence.
4These proceedings are determined pursuant to the Family Court Act 1997 (WA). I must make parenting orders which I consider to be in the best interests of G. In determining what is in G’s best interests, I must determine the following:
•Is G at risk of harm in either parent’s care?
•What is the capacity of each parent to provide for G’s needs?
•Where should G live?
•What time and contact, if any, should G have with the parent with whom she is not living?
•Parental responsibility.
WHAT ARE THE ORDERS SOUGHT?
Independent Children’s Lawyer
5G was represented by an Independent Children’s Lawyer [(“ICL”)]. After completion of the evidence the ICL handed up a Minute seeking interim orders only.[1] She seeks G immediately live with the father, he have sole parental responsibility for G and he enrol G in a school close to his home. She proposes G have no contact with the mother for 60 days, unless directed by the aftercare psychologist, who is to support G.
[1] Which was later amended on 17 February 2020
6The ICL initially proposed Legal Aid meet the costs of the aftercare psychologist, but has since advised that Legal Aid are not prepared to do so, in light of the parties’ financial circumstances. She seeks the mother and the father meet equally the aftercare psychologist’s costs.[2] She proposes each parent and G attend upon their own psychologist, with all therapy and psychological intervention to be reportable.
[2] Affidavit of the ICL filed 9 March 2020.
7After 60 days of no contact, she proposes G spend a minimum of two hours supervised time each fortnight with the mother, at the mother’s cost, for a minimum of six visits.
8The father is to keep the mother and the ICL advised about G’s health, with G to continue to attend upon [Dr H], her paediatric [specialist]. She seeks injunctions restraining the mother from contacting any of G’s medical practitioners, school and G’s psychologist, other than as permitted pursuant to the orders. She seeks both parents be restrained from denigrating the other parent and their family, and from discussing the Court proceedings to or in G’s presence.
9She seeks each parent be restrained from removing G from Australia without the other parent’s written consent or an order.
The father
10The father initially sought orders in terms of his minute filed 7 November 2018. After receipt of the ICL’s minute, the father advised he agreed with those proposals, except for the injunction restraining G from travelling overseas.
11The father has since filed an amended minute.[3] He continues to support the ICL’s proposals, with the following exceptions:
[3] Which has been accepted for filing 13 February 2020.
(a)If Legal Aid are not prepared to fund the aftercare psychologist, he proposes the mother pay those costs. He seeks additional documents be provided to that psychologist.
(b)Either following 60 days of no contact between G and the mother or upon the recommendations of the aftercare psychologist, G spend two hour supervised visits, close to his home, at the mother’s cost. Thereafter he proposes the aftercare psychologist determine G’s time with the mother.
(c)Before G commences spending unsupervised time with the mother, he seeks the mother complete drug and alcohol counselling and provide details of her relationship status and living arrangements.
(d)He proposes different arrangements in terms of how the parties communicate.
(e)He seeks to enrol G into a school of his choice, not limited to one close to his home.
(f)He seeks a passport for G, with liberty for him to travel with G to [Country A].
(g)He proposes more extensive injunctions including both parties being restrained from discussing their separation with G “other than in a way that promotes [G]’s relationship with the parent [sic]” and the mother be restrained from:
“persuading, encouraging, coaching or using any other means to get G to make additional allegations or disclosure about the Father in regard to any past allegations or issues prior to the date of the Final Orders, including but not limited to, attending a Police Station or the DCPFS with [G].”
(h)He seeks the mother’s psychologist address her parenting and perceptions which negatively impact upon G’s health, mental well-being and sense of security, as well as to increase her understanding of the “cyclical history of domestic violence in [her]... past relationships and the impact and trauma that [G] has suffered from being exposed to extreme domestic violence by the Mother.”
(i)He agrees to attend on a psychologist to assist him to support G’s transition into his care. He opposes the ICL’s proposals that he comply with the psychologist’s recommendations and he gain an understanding about domestic violence. He does not agree to all therapy being reportable.
The mother
12The mother’s proposals have changed significantly throughout the course of these proceedings. Prior to trial, the mother sought G spend supervised time with the father, and he complete various courses before considering unsupervised time. On the first day of trial, the mother revised her proposals and opposed G having any contact with the father. At the conclusion of the evidence, the mother sought G spend unsupervised time with the father on alternate weekends, in addition to extended time in the school holidays.
13The mother has since filed a minute on 14 February 2020 seeking final orders. She proposes G live with her and she have sole parental responsibility. G will spend time with the father during school terms, on alternate weekends from Friday afternoon until the commencement of school on Monday, during school holidays, from 3 pm on the middle Saturday to 3 pm the following Saturday; and in the summer school holidays, for up to 14 nights, on up to seven consecutive nights for each visit, unless otherwise agreed.
14She proposes G spend time with each parent on special occasions. Handovers will occur at G’s school, the maternal grandparents’ home, or otherwise at the father’s home, with each parent being able to nominate an agent to conduct the handovers.
15She proposes G be able to travel with either parent. She seeks mutual, without admission injunctions including preventing any change to G’s current school, her residence “to a location further than 30 km from each other”, consuming alcohol to excess or using illicit drugs prior to or during time spent with G. She proposes the parties engage in reportable family therapy as recommended by the ICL, with the costs to be shared equally.
WHAT IS THE EVIDENCE RELIED UPON?
16The mother relies upon her affidavits filed 18 March 2019 and 11 June 2019, the affidavits of [Mrs Shelley] [(“the maternal grandmother”)] and [Mr B] both filed 17 May 2019 and [Ms C] sworn 30 May 2019.[4] The father relies upon his affidavits filed 23 November 2018 and 20 May 2019, together with the affidavit of his mother [Mrs Dickens] [(“the paternal grandmother”)] filed 1 August 2012.
[4] Handed up in Court and accepted for filing on 11 June 2019.
17The parties also rely upon two reports of the Single Expert Witness [(“Single Expert”)] [Mr R] filed 29 July 2014 and 3 July 2018, together with a number of documents which were tendered as exhibits.
18I have considered all of the evidence very carefully. If I have not referred to the evidence of a witness, or part of it, it should not be assumed that I have disregarded or overlooked it.
CONDUCT OF THE TRIAL
19The father was a self-represented litigant. I explained the trial procedure to him. I am aware of the guidelines regarding the manner in which a judicial officer should deal with unrepresented litigants.[5] I applied those guidelines during the course of the proceedings. I am satisfied that the trial was fair and the father was able to fully participate. The father was well prepared for trial. He asked a number of relevant questions and conducted himself appropriately.
[5] And the associated discussion contained in Re F: Litigants in Person Guidelines (2001) FLC 93-072 at [209] to [253].
20The mater was listed for trial, with an estimated hearing time of five days. The trial commenced on 10 June 2019. On 19 June 2019 it was adjourned part-heard, after six days. At that time, the mother’s case had been completed and the father was being cross-examined.
21On 27 November 2019 the trial was due to resume, with an estimated further hearing time of three days. On that date, the ICL [Ms A] advised the mother’s counsel had raised an issue that morning about her capacity to continue to act. The ICL subsequently sought to withdraw on a without admission basis. I made orders as sought by the ICL and requested Legal Aid urgently consider the appointment of another ICL, which then took place, with the appointment of Ms Korzeniecka.
22The mother then sought to discharge the Single Expert, Mr R, the appointment of a new Single Expert, and for a Family Consultant to interview G. That application was opposed by the father. The newly appointed ICL did not wish to be heard in relation to that application. On 29 November 2019 I heard and dismissed the mother’s application, for the Reasons I provided.
23On 20 January 2020 the trial resumed, with an estimated further hearing time of four days. After completion of the evidence, the ICL made an oral application for an immediate change in G’s living arrangements. I dismissed the application, for the Reasons I provided.
24I incorporate and adopt my Reasons delivered on 29 November 2019 and 23 January 2020, which I do not intend to repeat.
25At the conclusion of the trial, the ICL and the father relied on the same submissions they articulated in support of the ICL’s oral application. The mother’s counsel advised she was unable to hand up an amended Minute or to deliver her closing address, due to the mother’s distress. I made orders for the mother to file and serve written closing submissions and an amended minute within 14 days and gave the ICL and the father leave to file further submissions thereafter and to allow the ICL to file and serve a further affidavit, following her enquiries with Legal Aid and the proposed psychologists.
26As a consequence of the mother’s late filing of her closing submissions and amended minute, I extended the time in which the father and the ICL had to file and serve any further submissions. I also required the mother to file and serve a financial statement, to enable Legal Aid to consider the ICL’s request for further funding.
27While the father opposed the mother having leave to rely on her late filed submissions and minute, I have accepted them for filing. The father has since filed an outline of his closing submissions, which I have also accepted.
WHAT IS MY ASSESSMENT OF THE PARTIES AND WITNESSES?
28The mother was generally frank in giving her evidence. She struggled to answer many questions, including those posed by her own counsel. She preferred to make statements and had to be directed on multiple occasions to answer the questions she was asked.
29The mother has a very poor view of the father. She clearly dislikes him and does not trust him. The mother described in some detail her allegations of family violence against the father. The mother avoided looking at the father during cross-examination and when giving evidence. She did not present as fearful or intimidated when being cross-examined by the father; she was generally calm and contained when giving her evidence.
30There were occasions when the mother became overwhelmed. For example she presented as visibly distressed and upset, when recalling the incidents of violence with [Mr D] in 2015. I am mindful of the need to be careful in placing reliance on a witness’s appearance.[6]
[6] Fox v Percy (2003) 214 CLR 118.
31To the mother’s credit, she made a number of concessions. For example, she accepted that the father contributed financially to their relationship. While she gave sworn evidence that the father had “never changed a nappy, fed [G] a bottle or undertaken any necessities for [G], other than one or two baths”,[7] she conceded that was untrue.
[7] Refer to the mother’s affidavit filed 18 March 2019, paragraph 164.
32However, there were a number of aspects of the mother’s evidence which caused me concern:
Firstly, the mother was neither candid nor frank about her relationship with Mr D. In 2015 G’s school raised concerns that G was displaying increased anxiety and behavioural issues, which led to her being referred to a clinical psychologist. In February 2015 G was at home when the mother and Mr D fought, Mr D cut himself with a knife, the police were called and he was sectioned under the Mental Health Act 2014 (WA). The mother conceded G may have heard her and Mr D arguing, but maintained G had not seen anything, nor ever mentioned the incident to her. The mother failed to disclose these matters when proceedings were then on foot.
Secondly, I found the mother prone to exaggerate and embellish her evidence. For example, she denied she had ever hit, sworn or behaved in an aggressive manner towards the father. I do not accept that evidence. I consider the mother, particularly when she had been drinking, behaved in that manner as alleged by the father and corroborated by his mother. At times, I consider the mother was the aggressor for example, the mother conceded she kicked in the door to the yacht’s cabin, when the father had locked himself in, to get away.
The mother referred to an email the father sent to her in July 2016[8] in which he wrote “When you get here I am going to punch you in the guts”. The mother cited this as an example of the father’s abusive behaviour. The father explained the phrase “punch you in the guts” was one of the mother’s favourite sayings and was said in an affectionate manner. I prefer the father’s evidence on this topic, which was consistent with how his email was signed off “Love and kisses choc xxxooo”.
Thirdly, I found the mother was unable or unwilling to give her evidence in a balanced manner. She maintained that the father presented a risk of harm to G. She insisted G’s difficulties were as a consequence of spending time with the father, including in a supervised context. She refused to entertain the possibility that any of G’s statements may have an innocent explanation. The mother has interpreted many of G’s statements in a manner that paints the father in the worst possible light. She was dismissive and rejected any alternate explanations, which were inconsistent with her own beliefs.
[8] Annexure D to the mother’s affidavit filed 18 March 2019.
33Mrs Shelley is the mother’s mother. To her credit, she was strongly supportive of the mother. She too holds a poor opinion of the father and spoke in similar terms to the mother in terms of criticising the father. She considers, like her daughter, all G’s difficulties are directly related to spending time with the father.
34The maternal grandmother conceded the mother’s anxiety could affect G, but she rejected the possibility it contributed to G’s behaviour. The maternal grandmother considers G may have been abused by the father based upon G’s statements. She accepts what G has said, in her words, “unquestionably”. The maternal grandmother views G at risk of harm in her father’s care and said it was “perfectly possible” that the father has sexually harmed G.
35Mr B is the mother’s partner. He is supportive of the mother. He and the mother met in 2015 and began a relationship in 2018, which ended in November 2018. They have since resumed their relationship in February 2019, but do not live together. Mr B says they are looking to live together and hopefully marry. I found Mr B to be a frank witness. He explained G asked if she could call him Daddy. He said she could, if that is what G wanted.
36Mr B reported G said to him she did not want to see her father. Like the mother, he considers G’s wishes should be decisive. He drove G to supervised visits until October 2018, and described G as being quiet and subdued on occasions, angry and at other times, happy. He never saw G hyperventilate, vomit, or pull her hair before or after any supervised visits.
37Ms C is the mother’s friend. She is strongly supportive of the mother. Having observed Ms C in the witness box, her dislike of the father was plain. Ms C explained when she visited the mother in hospital after G’s birth, the father was aggressive and agitated, however she conceded he may have been stressed and worried. She was unable to recall having sworn an affidavit in the first set of proceedings.[9]
[9] Exhibit 15 – Affidavit of Ms C filed 21 January 2015.
38Ms C has provided two statements to the police, the first in February 2017 and more recently [in] May 2019, to which I will refer in more detail. Ms C believes that G has been sexually abused by the father. She accepts what G has said is true, because G has repeated it. She told the police she was aware of the father’s alleged history of sexual and physical abuse. I consider it highly unlikely that Ms C was unaware of the outcome of her first police statement, as claimed, given the close relationship she and the mother share.
39I found Ms C to be blinkered in her belief that the father has harmed G. Ms C was not an impressive witness. Her evidence about her conversations with G, included leading questions, encouraging G to make disclosures and suggesting the mother would be in trouble, caused me concerns about her insight.
40The father attempted to answer the questions asked of him directly and honestly. I was not satisfied that the father was frank or candid in his evidence about family violence for the reasons that follow. I consider he minimised these events and demonstrated a lack of empathy for the mother and insight into the effect his violence caused her.
41The father gave evidence in a very careful, considered manner. At times, he was particular to the point of being pedantic. He was focused on minutiae in terms of details, for example, about ropes never being in the cabin and hatches always being open to maintain airflow, in his efforts to undermine the mother’s evidence. He was contained and controlled throughout the trial.
42Having had the opportunity to observe the parties, it is clear they have very different personalities and ways of communicating. I consider it likely these issues, and others, contributed to their conflict.
43When the father was asked about incidents of family violence during the parties’ relationship and alleged statements he made, he frequently said he was unable to recall the specifics given the passage of time. On other occasions, the father was adamant about the accuracy of his recollection.
44The father was at times guarded and evasive, particularly when questioned about his financial circumstances and payment of child support. I gained the impression the father did not want to share that information with the mother.
45The father was also prepared to view the mother in the worst possible light and to accept any evidence that supported his view. For example, he relied on Mr D’s statements to the police claiming he had been the victim of violence by the mother.[10] He accepted Mr D’s claims that the mother drank to excess and drove under the influence with G in the car. While there is corroborating evidence about the mother drinking and driving,[11] I do not consider Mr D’s allegations are likely to be reliable. In reaching that conclusion, I have taken into account the following:
•Mr D has suffered from poor mental health which has required police and medical interventions;
•There is ample evidence to suggest that since the end of the mother and Mr D’s relationship, Mr D has embarked upon a course of conduct designed to intimidate, threaten and harass the mother, including making complaints to the police, to supervision services and to the father, which are not supported by other independent evidence;
•Contrary to Mr D’s claim that he was the victim of family violence, the Magistrate’s Court was satisfied that the mother and G required protection from Mr D granting a five-year VRO;
•Mr D unsuccessfully sought a property settlement against the mother which was summarily dismissed and he has been ordered to pay the mother’s costs in the Magistrates Court and this Court.
[10] Exhibit 2 - Police statement of Mr D unsigned, dated […] February 2015.
[11] Refer to Supervision Agency B incident in 2015.
46Mrs Dickens is the father’s mother. She was, to her credit, strongly supportive of her son. She described the supervised visit between in June 2019 for G’s birthday in glowing terms. She provided photographs of the visit and said G was comfortable and unable to leave her father alone. G told her she wished her grandmother could live next door.
47The paternal grandmother was extensively cross-examined by the mother’s counsel about her communications with the mother. The paternal grandmother and the mother previously shared a close friendship. I will refer to these matters in more detail later in the Reasons. I consider the paternal grandmother gave her evidence honestly.
48[Mr P] is the principal of [Primary School A]. He attended trial pursuant to a subpoena issued by the ICL. Mr P gave his evidence in a professional, balanced and most helpful manner. He was an impressive witness and I have no hesitation accepting his evidence.
49Mr R is the Single Expert. He is a clinical psychologist, with over 30 years’ experience. I considered Mr R was professional, measured and helpful giving his evidence, which I will consider in more detail below.
WHAT ARE THE BACKGROUND FACTS?
50The father was born [in] 1968 in Country A. He has an older sister, who lives with her partner and son in Country A. The father’s parents also reside in in Country A.
51The mother was born [in] 1973. She has a younger brother, who is married with two daughters. Her father passed away and her mother re-partnered. The mother has a close relationship with her mother, [her mother’s partner] and [her brother].
52The parties met in 1999 in [Town A] and formed a relationship shortly thereafter. The father was then around 31 years of age and was on holidays, while the mother was 26 years of age and working as [an office manager].
53The parties moved to Perth where they began living together in late 1999. The mother continued working. The father began his own business. The mother subsequently bought a house in [Suburb A] where the parties then lived.
54From the start, the parties’ relationship was tumultuous and conflictual. In October 2000 the parties fought. The mother tried to hit the father. The father attempted to protect himself and in doing so, elbowed the mother in the mouth, causing her to suffer two broken teeth. She required treatment from [a doctor], who considered the damage was caused through a considerable sudden force. I accept the father did not deliberately hurt the mother. However, I accept the mother suffered significant injuries and the father’s behaviour was violent and unacceptable.
55In December 2000 the mother and the father argued. Both parties shouted at one another. The mother threw a glass which smashed. The mother stood in front of the father, to prevent him leaving. The father pushed the mother, causing her to fall to the floor.
56In early 2001 they again argued. I consider on that occasion both parties were verbally abusive to one another. The father tried to leave and the mother stood in the way. Despite the mother’s denials, I accept she attempted to hit the father. He pushed her, causing the mother to fall onto a wall, then hit the ground and break her wrist.
57The father wrote to the mother afterwards, apologising and explaining he had not meant to hurt her, but had acted in self-defence. Having said that, he wrote “there is no excuse. I have always blamed you for our arguments turning to violence, but I know now that we are equally to blame”.[12] He acknowledged his fuse had become “shorter and shorter” over recent times and he felt the mother was “constantly going” at him. He questioned how, when they loved each other, they ended up in such a vicious cycle.
[12] Refer to the mother’s affidavit filed 18 March 2019, annexure C.
58The father’s suggestion that the mother was prone to broken bones did not reflect well on him and was indicative of his general dismissive attitude towards his acts of family violence.
59The father took the mother to [Hospital A] where she underwent surgery [in] January 2001.[13] The father then moved out. The parties attended counselling in February 2001 and thereafter, their relationship is best described as “on again – off again”, until they separated in 2004.
[13] Exhibit 28 – Letter from [a surgeon], dated 21 May 2013.
60The mother began a relationship with [Mr E], whom she married in December 2005. The mother admits their relationship entailed family violence, including her slapping Mr E across the face and him throwing furniture.
61In August 2006 the mother suffered [an] injury and received workers compensation. Thereafter, the mother worked on a limited basis. In 2008 the mother and Mr E separated.
62In June 2008 the parties began communicating via email. By 2009 they discussed reconciling. Each party apologised for their previous conduct, and they agreed to resume their relationship. They reconciled in August 2009, following which the father told the mother he had [a sexually transmitted infection].
63In September 2009 the father bought a yacht. The parties then agreed to a sailing trip. The mother took long service leave and in December 2009 she met the father [overseas].
64The sailing trip was not a success. Almost immediately the parties began to argue and fight, which included yelling, swearing, shouting and physical altercations. The parties would then make up, before the cycle the father wrote about, continued. Their previously unhealthy relationship turned toxic, escalating with the pressure of being together in a confined and isolated environment. Compounding those difficulties were the fact the mother suffered from sea-sickness and she was home-sick. The mother became pregnant on the journey, adding to her health issues.
65The parties’ arguments were particularly bad when they had been drinking. The father alleges the mother was violent and aggressive when she combined alcohol with prescription medication. The paternal grandmother, who joined the parties on the yacht, witnessed the father restraining the mother by her wrists, to prevent the mother hitting him.
66Each party referred to multiple incidents on the yacht. I do not consider it necessary to detail them all. I have set out below a few examples of incidents:
(a)In January 2010 the parties argued. The mother says the father threw her into a dinghy tied to the back of the yacht, causing her to hurt her back. The father was at pains to demonstrate the dinghy was tied behind the yacht at such a distance that it was not possible for him to have done so. The mother says the parties were returning to the yacht in the dinghy when the incident occurred.
(b)[In early] 2010 the father’s friend joined them on the yacht. There were further arguments between the father and the mother. The mother pushed the father and tore his shirt. Despite the mother’s denials, I accept she hit the father in the face, causing him to suffer a bloodied lip and bruises. Despite the father’s denials, I accept he hit the mother, causing her bruising and breaking her sunglasses. I also accept the mother smashed items.
(c)The following day was the mother’s birthday. The father said to the mother, words to the effect of “welcome to the worst fucking birthday of your life” and “you brought this shit on yourself, you get what you deserve, thank yourself”. The father was not prepared to celebrate the mother’s birthday because she would not admit to having been violent towards him the night before.
(d)Later in the day the mother was on the satellite phone to her mother, and her nieces. The father swore at the mother, told her to get off the phone, before grabbing it and breaking the antenna. The mother then stayed with a friend for a few days on a neighbouring yacht.
(e)[In June] 2010 the parties were sailing to [Location A]. The mother was on night shift and when the father woke, he yelled at the mother, calling her a ‘stupid bitch’ for not completing the log book. The argument escalated which included the mother throwing items overboard, hitting and attacking the father. The father held the mother on the ground and placed a pillow on her chest. He denies threatening to kill the mother or to tie her up. He said he would call the coast guard. I do not accept the father held the pillow over the mother’s face. I accept the mother struggled to breathe with the weight of the father on her chest. The mother was frightened given the father’s reaction, noting the significant size difference between them.
(f)In July 2010 the mother returned to Perth for medical treatment. During that time her wrist was put in a cast. [In mid] July 2010 the mother returned to the yacht. The parties argued about credit on the satellite phone. The altercation escalated. The mother alleges the father pushed her into a dinghy causing her to fall and bruise her ankle; he said the relationship was over and then pushed the dinghy out to sea. The mother was unable to row the dinghy because her wrist was in a cast, so she jumped into the water and swam back to the boat.
(g)In August 2010 the parties again fought, while sailing in [Location B]. Both parties yelled and shouted at one another. The father locked himself in the cabin. The mother kicked the door in. He says the mother came into the cabin throwing punches and kicking him, causing him a swollen lip and bruises. The father then picked up two knives, which the mother says he waved in her face, swore and threatened her. The father says he picked up the knives to prevent the mother grabbing them, and then put them away. The father took photographs of the smashed door, which the mother deleted. The argument involved both parties swearing, yelling, shouting and a physical altercation. The mother then left the yacht for three nights, before returning.
(h)In October 2010 [another of] the father’s friends joined the parties on board. The mother alleges the father and [his friend] had a physical altercation which the father denies. I am unable to make any findings on this issue, but I do not consider it material that I do so. [The father’s friend] was not called as a witness. I do accept, despite the father’s denials, that [his friend] spoke with the father about the way the father was treating the mother, which he relayed to the paternal grandmother.
67On 18 October 2010 the paternal grandmother brought a pregnancy test onto the yacht, which confirmed the mother was pregnant. At that time, the paternal grandmother and the mother were in regular contact, with the mother expressing concerns about the father’s behaviour. At that time, they were close friends and confidants.
68Many of the paternal grandmother’s emails were sent in response to the mother’s emails, most of which were not in evidence. I accept the paternal grandmother was concerned for the mother, based upon what the mother reported and based upon her own observations of the parties’ relationship.
69I am not satisfied that significant weight can be attached to the emails, in circumstances where: the complete chain of communications was not in evidence; the paternal grandmother’s emails were sent in response to the mother’s version of events which the paternal grandmother accepted as accurate; the paternal grandmother no longer considers the mother’s version were honest; despite the mother’s denials, I accept she was also verbally and physically abusive towards the father, which was material to the context of many of the mother’s complaints.
70In November 2010 the mother started to bleed while at sea and asked to return to the mainland. The parties argued over where to sail to. The mother attended hospital and was later discharged.
71The mother returned to Perth in November 2010. The father sailed back to Australia, arriving in [State A] the following month. The parties remained in telephone contact, but their relationship was strained. The father returned to Perth around New Year’s Eve, when they again argued and the father then returned to live on the yacht.
72In April 2011 the parties attended antenatal classes. They continued to fight. The mother says on one occasion when she was heavily pregnant the father pushed her into the door. The father denies doing so, claiming he was trying to leave when the mother blocked his path.
73On the day the mother was booked in to have a caesarean the parties again argued. G was born [in mid] 2011.
74[Six days later] the mother and G were discharged from hospital. The mother alleged the father was then drinking to excess and was verbally abusive towards her. She also says he was dismissive of her concerns about his dog being around G. The father denies the allegations and says he was attempting to support the mother.
75G was tongue-tied and had difficulties feeding [and] was seen by the community health nurse. The mother completed the questionnaire in G’s baby book, in which she recorded she had concerns about others in her household.[14] I accept the mother was concerned about the father, but she felt unable to discuss her concerns with the nurse because the father was present.
[14] Exhibit 13 - G’s baby book.
76[Two weeks later] the mother alleges the father threatened to prove she was a hopeless mother, and he would take her to court and get custody of G. The father denies doing so and says G was an infant who was entirely dependent on her mother. I prefer the father’s evidence on this topic.
77The parties then separated on a final basis.
EVENTS SINCE FINAL SEPARATION
78The father remained at Suburb A while the mother and G stayed with the maternal grandmother. On 8 August 2011 the mother obtained a Family Violence Restraining Order against the father, which resulted in him vacating Suburb A. The VRO was ultimately resolved in September 2011 on the basis of an undertaking.
79Between August 2011 and February 2012 G did not spend regular time with the father. The mother says the father was disinterested in contact with G, despite her efforts. The father says he desperately wanted to do so, but due to the VRO he was unable to communicate with the mother.
80G spent time with the father on one occasion in August 2011, at the maternal grandmother’s home. The father initiated mediation to try and establish contact with G.
2011 COURT PROCEEDINGS
81In December 2011 the father commenced proceedings. [In February] 2012 interim consent orders were made for G to spend two-hour supervised visits each week with the father and until supervision could commence, the maternal grandmother was to supervise visits.
82On 1 March 2012 the mother filed a Notice of Child Abuse, alleging family violence and an ongoing risk of family violence. She repeated the allegations of physical abuse detailed above.
83On 17 February 2012 the parties attended a Case Assessment Conference. Both parents admitted their relationship had been violent, but blamed each other. The father referred to the violence as “tragic” and the mother said it was “totally dysfunctional”. The mother maintained the father had perpetrated extensive and sustained family violence. The father accused the mother of being the instigator of all violence, alleging she refused to back down from any argument and always wanted her own way, including resorting to physical violence to achieve it.
84The father did not raise any concerns about the mother’s parenting. The mother questioned the father’s capacity to care for G, complaining he allowed his dog to lick G’s head when she was two weeks old.
85The Consultant recommended the father attend domestic violence counselling and supervised visits continue, pending the appointment of the ICL.[15]
[15] Exhibit 16 – Case Assessment Conference memorandum dated 17 February 2012.
86The father then attended nine individual sessions [of domestic violence counselling] between March 2012 and January 2013.
87On 14 March 2012 interim consent orders were made, subject to a satisfactory supervision report, that G spend four hours unsupervised each week with the father. Additional orders were made, without admission, for the father to complete a domestic violence course and for each parent to complete [a parenting course]. Paragraph 4 of the orders stated:
For the avoidance of all doubt, the Applicant Father’s time with the child … [is] conditional on the father enrolling in the courses and using his best endeavours to participate in and complete the courses and DCP and the WA Police have no substantive concerns arising from the Form 4 filed by the mother on 24 February 2012.
88The mother withdrew from the parenting course saying she found it too distressing. She completed the course separately. The father attended individual counselling. He did not attend [the domestic violence course] because of his work commitments.
89On 15 July 2012 supervised visits commenced [with Supervision Agency A].
90On 29 August 2012 the Department responded to the mother’s Notice, advising no action was warranted. They were unable to verify the allegations which related largely to events which occurred overseas and prior to G’s birth.
91In 2012 G suffered from gastro-oesophageal reflux. She also experienced sleep problems and irritability. G’s GP considered[16] some of G’s issues may be caused by the mother’s anxiety, exacerbated by the Family Court proceedings. G and the mother attended [Support Service A] to address sleep issues. The mother also consulted [a hospital].
[16] [In] September 2012.
92[In late] 2012 Supervision Agency A published a report, following six visits between July and October 2012. The supervisors described a good relationship between G and each parent, including transitions. They observed positive interactions between the father and G, but said the father was not adequately attuned to G’s physical care, such as feeding, changing nappies and not bringing food and drink. The father argued these were matters for the mother. Supervision Agency A recommended further supported visits.
93The father subsequently attended Support Service A with G on 3 and 5 December 2012. Support Service A described the father in a positive manner and found he was attentive to G’s needs. On 6 December 2012 the father attended [Parenting Program A provided by Support Service A].
94On 10 January 2013 interim orders were made for G to spend unsupervised time with the father each third Monday, Tuesday and Thursday from 12 noon until 4:30 pm, to coincide with the father’s work roster. He was required to complete [Parenting Program B provided by Support Service A], which he did.
95G spent time with the father [on seven occasions]. The mother then withheld G, claiming G was exhibiting severe distress and concerning behaviours. She alleged G was clingy and distressed when out of her mother’s sight, waking up screaming, having tantrums, acting aggressively including pulling her mother’s hair, hitting, biting and throwing things, biting her own nails and pulling her hair. G then spent time with the father, on a supported basis with Supervision Agency A.
96Supervision Agency A’s report,[17] noted [in] April 2013, G was displaying “markedly different behaviours and demeanour” to when she previously attended their service, in 2012. G was distressed when provided to her father; she showed no signs of recognition, she turned away from him and was screaming, but after several minutes she stopped crying and played. When G returned to her mother, she threw herself at the mother, grizzled and pulled her mother’s hair. The supervisors stated the father did not demonstrate any capacity or empathy for G’s needs and in their view, he demonstrated a punitive, punishing attachment style.
[17]See affidavit of the mother filed 18 March 2019, attachment I - Supervision Agency A’s report dated 15 May 2013.
97Supervision Agency A stated they held significant concerns about G’s safety and requested a risk assessment. Supervision Agency A interviewed the mother only and reported:
•The mother had experienced well-documented and substantiated history of severe, life-threatening physical and emotional abuse.
•The case was characterised by coercive power and control and domestic violence perpetrated by the father towards the mother.
•There were serious and potentially lethal risks to G, resulting in Supervision Agency A recommending a review of the contact arrangements.
98On 19 July 2013 interim orders were made reinstating supervised time between G and her father each third Saturday and Sunday for up to 4 hours on a supported basis at Supervision Agency A.
99The father lodged a complaint with Supervision Agency A. He accused them of playing “judge and jury”, without affording him any input into their assessment. Supervision Agency A engaged [Mr V] to conduct an investigation. Mr V’s report has not been released to the parties. Supervision Agency A then withdrew their services.
100On 14 October 2013 the parties attended [Supervision Agency B] for assessment.
101In 2013 the mother’s GP referred her to [Mr J] for counselling. Mr J reported he conducted trauma work with the mother arising from the violence suffered during her relationship with the father.[18] Mr J found the mother had severe PTSD, and moderate anxiety. He considered the mother’s health was compounded by her view that the Family Court was “failing to protect her child” and Supervision Agency A’s assessment that the father posed a lethal risk of harm. Mr J described the mother as suffering ongoing distress, which he found to be genuine.
[18] Exhibit 36 - Letter from Mr J to [Psychology Practice A] dated 29 June 2013.
102Mr J opined that the mother’s PTSD was exacerbated by the proceedings, the father’s denials of being the perpetrator of family violence and accusation of being the victim, and the mother’s perception that the “system” was not taking her fears seriously.
103G was seen by [an ear, nose and throat [(“ENT”)] specialist] for sleep disruption, snoring and behavioural problems. She was diagnosed with an obstructive sleep disorder and surgery was recommended. [Dr F], G’s treating ENT specialist, considered G’s sleep disorder likely impacted upon her behaviour, but he could not discount issues within her home as also contributing to her behavioural issues.
104The father questioned whether G required surgery. He was required by the Court to make enquiries with Dr F.[19] There were some delays in the father obtaining an appointment, as a result of his work roster, as well as the specialist’s availability.
[19] Exhibit 31 –Email chain between the father and Dr F dated various in 2013.
105The father objected to what he described as being pushed into making a decision regarding G’s health. The father told the mother’s solicitors he considered their communication “both insulting and threatening” and he did not “need to be intimidated by a lawyer to make decisions regarding the health and well-being” of his daughter. He stated the solicitor’s involvement was “totally unnecessary and inappropriate” and he “will not discuss the serious issue of G’s health with anyone other than the mother”.[20]
[20] Exhibit 26 – Email from the father to [Law Firm A] dated 2 September 2013.
106Following that communication, G attended again upon Dr F who wrote on 28 August 2013, confirming his recommendation that G undergo surgery.[21] The father did not consent to the surgery until 4 September 2013, at Court.
[21] Exhibit 26 – Letter from [Law Firm A] dated 29 August 2013, enclosing correspondence from Dr F dated 28 August 2013.
107The presiding Magistrate, in his Reasons, at paragraphs 20 and 21 stated the mother had:
…retained legal representation because she finds it exceptionally difficult to deal with [Mr Dickens]. There are very significant allegations made by [Ms Shelley] that she was the victim of serious violence from [Mr Dickens]. [Ms Shelley] is currently undergoing therapeutic intervention with this regard.
It is my view that it is entirely unrealistic of [Mr Dickens] to expect that [Ms Shelley] will deal directly with him in all matters pertaining to [G’s] welfare. [Ms Shelley’s] evidence is that she is simply unable to do so. On an interim basis I can make no findings as to the reasonableness of [Ms Shelley’s] attitude in this regard.
108On 4 September 2013 orders were made by consent for G to undergo surgery, which was scheduled [in] October 2013.
109On 8 November 2013 orders were made for G to spend supervised or supported time with the father at Supervision Agency B, for the mother to have sole parental responsibility in relation to G’s health, to authorise G’s treating medical practitioners to release information to the father and keep him informed.
110On 18 December 2013 further interim orders were made for G to spend time with her father twice each week, for two hours, supervised by [Supervision Agency C], with the mother to contribute to the costs. On 31 January 2014 the orders were varied to provide supervision take place at [Supervision Agency D].
111[In] May 2014 Supervision Agency D produced a report describing the supervised visits between February and April 2014. The mother raised concerns that the father would physically overpower a female supervisor and may abscond with G, so a male supervisor was engaged. Supervision Agency D reported G transitioned easily between her parents and described G as developing a strong and trusting attachment with the father. The supervisors found the father set appropriate boundaries, demonstrated empathy and encouraged G at the end of visits to return to her mother. Supervision Agency D described both parents as presenting positive attitudes towards parenting G and appearing child-focused.
112The mother told Supervision Agency D that G was adversely reacting to supervised visits, including screaming uncontrollably at the mention of her father’s name, saying she did not want to go, pulling her hair and removing all of her clothes when she went to the toilet. The supervisors did not observe any of the alleged behaviours, either during changeovers or visits.
113In 2014 the mother engaged investigators to conduct surveillance on the father.[22] The surveillance reports referred to looking for the father’s interactions with drug dealers and sex workers, presumably at the mother’s request or her solicitors. No such matters were observed. The surveillance included the father’s visits with G.
SINGLE EXPERT’S FIRST REPORT
[22] Exhibit 6 – Emails from [the Investigators] to Law Firm A dated 1 and 3 November 2014, 31, 30 29, 28 and 27 October 2014.
114On 14 October 2013 orders were made by consent for the appointment of Mr R as the Single Expert. His first report is dated 21 July 2014.
115Mr R said the case posed unique challenges, requiring much attention and care. He spent around 33 hours interviewing the relevant parties, 21 hours studying the material and around 40 hours evaluating tests, integrating information and writing the report.[23]
[23] Exhibit 34 – Correspondence from Single Expert to ICL dated 30 July 2014.
116The salient parts of the Single Expert’s first report were as follows:
(a)The father wanted to spend increased and unsupervised time with G, while the mother “strongly believes and fears the father will physically, emotionally and sexually harm [G] and kill her and/or [G]. She strongly believes that [G] presents with several adverse reactions after she has had contact with the father, including pulling her hair out, sleep difficulties and more clingy. The mother says [G] has said ‘Daddy tries to kill me’. The father is concerned about the mother’s metal [sic] health and her making unfounded allegations”.
(b)He described the parties’ relationship as dysfunctional, characterised by conflict, arguments and aggression, both physical and verbal.
(c)Mr R observed G prior to her first two visits with the father at the mother’s home for an hour. Following those observations the mother took G to the supervision service, where he observed the changeovers and then G’s supervised visit with her father and the changeover. He observed G on three occasions in this manner. On the fourth occasion, he only observed the handovers and supervised time.
(d)Mr R had the father and the mother complete the State-Trait Anger Expression Inventory. The father achieved a high score on the anger expression, which was indicative of someone who frequently experienced intense angry feelings, but tended to suppress their feelings, rather than expressing them either physically or verbally. The mother’s results revealed a high score in the Anger Control-Out and Anger Control-In. He described those results as indicative of someone who expended a great deal of energy monitoring and preventing the outward experience and expression of anger, which may lead to passivity, depression and withdrawal. It may also lead to reduced responses to find constructive solutions to a frustrating situation. Mr R considered in light of the clinical information, it was possible:
(i)The father could express his anger physically and verbally in certain scenarios.
(ii)The mother could express her frustrations under certain situations and she had a tendency to become anxious and depressed.
(e)He observed no difference in G’s behaviour in the care of either parent, nor did he witness any of the behaviour or emotional reactions the mother reported. He found G to be a confident three year old child, who was able to confidently separate from each parent and she was developing adequately for her age. He described G being comfortable with her father and not displaying any anxiety or fear in his care.
(f)Mr R’s observations did not support the mother’s claims that G was anxious and worried about spending time with her father. He said it was of:
… concern as these symptoms are not observed whilst [G] spends time with the father or when observed whilst with the mother for the purpose of this assessment. The mother came across as an anxious person and certainly feels fearful and anxious with any issues relating to the father. Therefore the mother needs to be very aware that her own anxiety can impact directly or indirectly on [G’s] emotional development as this can make [G] anxious as well.[24]
[24] Paragraph 1010 of the Single Expert first report.
(g)Both parents agreed and the medical records corroborated their relationship was characterised by family violence. He was unclear whether the father was the sole perpetrator of violence, but stated “it is clear to me the parents were abusive to each other, causing harm to each other and the mother did obtain physical injuries which the father was responsible for. The parents’ relationship was certainly dysfunctional and destructive before G was born”.[25] He noted the lack of evidence about any violence since separation and the steps each parent had taken to address these matters.
[25] Paragraph 1070 of the Single Expert’s first report.
(h)He found no evidence to support the mother’s allegations of G displaying any anxiety or other adverse reactions to her father. Mr R’s observations were also supported by:
(i)Supervision Agency D who did not observe G displaying any anxiety-related symptoms during the course of 26 supervised visits and handovers;
(ii)The Supervision Agency A report dated November 2012, did not record G as anxious. The report of March 2013 recorded the mother’s assertions as to G’s anxiety;
(iii)The paternal grandmother’s affidavit of April 2013 and statements to the Single Expert that during the time she participated in Skype calls between the father and G in early 2013, she observed a positive relationship and did not have any concerns about his ability to care for G or G showing behavioural problems;
(iv)The Support Service A reports of December 2012 reported positively about G’s interactions with her father.
(i)He set out a number of possible reasons for the mother’s purported observations:
(i)The mother’s high levels of anxiety and fear of the father, was likely projected upon G. That may magnify the mother’s perceptions or her behavioural and emotional observations of G;
(ii)The mother’s PTSD may cause her to be hypervigilant, anxious and fearful, which consequently taints her view and interpretation of the father;
(iii)The mother’s desire to protect G from harm. She is unable to do so when G is in her father’s care, which increases her anxiety to the extent the mother’s thought processes may become irrational. He opined the mother may find it difficult, if not impossible, to separate her experiences with the father, from his relationship with G; and
(iv)G’s health problems in 2012 and 2013, which could have impacted upon her behaviour prior to surgery.
(j)Mr R noted the mother’s diagnosis and treatment for depression and PTSD. He detailed at some length the domestic violence counselling the mother received with [Support Service B], Mr J and the [Support Service C].[26] The latter described the mother’s behaviour including intrusive symptoms of flashbacks, nightmares, sleep difficulty, hypervigilance, frequent shaking and weeping and avoidance of situations and places which reminded her of the father.
(k)He described the mother as warm, friendly and empathetic but who seemed “very anxious, tense and emotional when issues regarding the father and her history with him were discussed”.[27] He considered the mother’s insight could be influenced by her stressful relationship and domestic violence, but that her judgement and insight could be coloured by her feelings and PTSD symptoms.
(l)He described the father as assertive and focused. He considered the father had good insight and judgement, but that he experienced problems when in a close intimate relationship. He did not consider the father suffered any major psychiatric disorder nor did he consider the father to be an impulsive or aggressive individual.
[26] Paragraphs 640 to 660 of the Single Expert’s first report.
[27] Paragraph 680 of the Single Expert’s first report.
117A significant issue at the time was Supervision Agency A’s view that the father posed a lethal risk to the mother and G. Mr R met with [two employees] of Supervision Agency A in an effort to understand their risk assessment. He agreed with Supervision Agency A’s conclusions there had been domestic violence, the mother had suffered injuries and the parents needed to be kept separate due to their dysfunctional relationship history. He disagreed with Supervision Agency A’s conclusion, observing they and the mother’s psychologist had:
(a)Relied upon their own knowledge and clinical judgment of domestic violence. Neither were able to articulate whether a structured risk assessment tool was adopted to reach their conclusion. Supervision Agency A did not provide the assessment tool they purportedly used;
(b)Relied heavily on the mother’s version of events only; and
300I propose, subject to hearing from the parties, to provide:
(a)G attend reportable therapy with [the aftercare psychologist] or [Ms Z] or such other psychologist as may be recommended by the ICL. Given Legal Aid will not fund that therapy, the parties will be required to share those costs equally. I will require them to obtain a mental health plan for [G], if that will subsidise the costs. In my view, it is appropriate both parties participate in that therapy, on terms sought by the psychologist. Each parent ought to contribute to the costs, which is in [G’s] interests and provides their investment into the process.
(b)[The mother] is to ensure that [G] attends school and if she is not at school, she is to notify the ICL and [the father] why [G] is absent and provide a medical certificate, if [G] is unwell.
(c)[G] should continue to attend on Dr [H]. [The father] will have liberty to liaise and attend an appointment with Dr [H] and [G], to ensure he has input and involvement in [G]’s health.
301If the mother proves either unwilling or unable to encourage, support and facilitate G’s relationship with her father and continues to cause G harm through her own beliefs and behaviour, including compliance with the orders I propose, then it may be that G’s best interests are served by G living with her father.
302I will give the ICL leave to relist the proceedings on short notice, including if the mother fails to comply with the orders for G to spend time with the father or to facilitate G’s attendances at therapy.
303I propose to adjourn the proceedings for monitoring. At that time, the Court can then consider any further arrangements, when the Court will hopefully have the benefit of updated evidence about the arrangements, how G is managing and obtain reports from G and each parent’s treating psychologist. I will hear from the parties in terms of orders for filing affidavits prior to that time.
304While the father opposed the injunction restraining G from travelling overseas, at this time I am not satisfied that the injunction should be removed. In my view, the priority at this time must be on the interim arrangements and the ability of each parent and G to engage with the psychological intervention that has been recommended. The question of travel can be considered at a later time.
305That is the extent to which I am satisfied orders can be made at this time, in G’s best interests.
PROPOSED ORDERS
306Subject to hearing from the parties, I propose to make orders as follows:
UNTIL FURTHER ORDER
1.All previous parenting orders in relation to [G] born [in] 2011 be discharged.
2.The mother and father are to communicate by way of email in relation to [G], with all emails to be copied onto the ICL.
3.[G] live with the mother.
4.[G] is to spend time with the father as follows:
(a)During school terms:
i. In term one, 2020 from the conclusion of school on Friday or 3 pm on a non-school day until the commencement of school on Monday or 10 am if a non-school day commencing 3 April 2020 and each alternate weekend thereafter;
ii. From term two, 2020 and each school term thereafter, from the conclusion of school on Friday or 3 pm if a non-school day until the commencement of school on Monday and if Monday is a non-school day, until the commencement of school on Tuesday or 10 am, commencing on the first Friday of each school term and each alternate weekend thereafter; and
iii. At such other dates and times as may be agreed in writing from time to time.
(b)During school holidays:
i. After terms 1, 2 and 3, for one week in each of the holidays, on dates as may be agreed in writing and failing agreement, from 10 am on the Saturday after the conclusion of term until 10 am on the following Saturday; and
ii. After term 4, on an alternate week about basis on dates as may be agreed in writing and failing agreement, from 10 am on the first Saturday of the holidays until 10 am on the following Saturday and each alternate week thereafter.
(c)On special occasions as may be agreed in writing from time to time and failing agreement:
i. In the event [G] is living with the father on the weekend in which Mother’s Day falls then [G] shall spend time with the mother from 5:00 pm Saturday until 5:00 pm on Mother’s Day;
ii. In the event [G] is living with the mother on the weekend in which Father’s Day falls then G shall spend time with the father from 5:00 pm Saturday until 5:00 pm on Father’s Day;
iii. For each of the parties’ birthdays the party who does not have [G] living with them on that day, spend time with [G] on the day as requested by the parent whose birthday it is at times to be agreed and failing agreement from 3:30 pm to 7:30 pm if the birthday is on a school day and from 10 am to 5 pm if the birthday is on a non-school day; and
iv. For [G’s] birthdays, the party who does not have [G] living with them on that day spend time with [G] at times to be agreed and failing agreement from 3:30pm to 7:30pm on the birthday if the birthday is on a school day and from 10am to 5pm if the birthday is on a non-school day.
5.For the purposes of handover:
(a)On school days, the father is to collect and return [G] to school; and
(b)During school holidays or non-school days, the father is to collect [G] at the commencement of time from the maternal grandparents’ home and the mother or her agent is to collect [G] at the conclusion of her time from the father’s home.
6.The mother and father do all necessary acts and things to enable G to attend upon [the aftercare psychologist] or [Ms Z] or such other psychologist as nominated by the ICL ([G’s] psychologist).
7.The ICL has leave to provide to [G’s] psychologist:
(a)The reports of the Single Expert Witness [Mr R]; and
(b)These Orders and Reasons.
8.To give effect to the preceding order, the parties do all things necessary to facilitate the attendance upon [G’s] psychologist including, but not limited to:
(a)Within 14 days the mother is to do all acts and things to obtain a mental health plan for [G] and obtain the earliest reasonably available appointment with [G’s] psychologist;
(b)In the event the mother fails to comply with the preceding order, then the father is to forthwith do all acts and things necessary to obtain a mental health plan for [G] and obtain the earliest reasonably available appointment with [G’s] psychologist;
(c)The mother is to ensure [G] attends her first scheduled appointment with [G’s] psychologist together with all subsequent appointments, as recommended by the psychologist, with the costs to be shared equally between the parties, if there is a gap;
(d)As soon as practicable after each appointment is made, the mother is to notify the father and the ICL in writing of the date and time of the appointment scheduled;
(e)In the event [G’s] psychologist considers it appropriate for either or both parents to attend sessions with [G], each parent must do so; and
(f)In the event that the mother fails to take [G] to any scheduled appointment with [G’s] psychologist, then the psychologist be requested to forthwith notify the ICL in writing and the ICL and the father have liberty to relist the proceedings on short notice.
9.[G’s] psychologist be at liberty:
(a)To inspect any subpoena documents retained by the Court, to which the ICL has leave to inspect;
(b)Contact any medical practitioner, specialist, mental health practitioner and school [G] attends upon; and
(c)Request from the ICL such other documents as may be reasonably available.
10.Within 21 days of the date of these orders:
(a)The mother is to contact and make an initial appointment to engage in reportable therapeutic counselling with a clinical psychologist to be agreed with the ICL, to support her care of [G], to support and improve her relationship with the father, to address the issues in terms of family violence in her previous relationships and to improve her capacity to support [G’s] relationship with her father; and
(b)The father is to contact and make an initial appointment to engage in reportable therapeutic counselling with a clinical psychologist to be agreed with the ICL, to support his care of [G], to support and improve his relationship with the mother and to improve his understanding of the impact of the domestic violence that occurred in his relationship with the mother.
11.The mother and the father are each to attend the earliest available appointment with their clinical psychologist and advise the ICL and the other parent in writing, of the date of that appointment.
12.The ICL has leave to provide to the mother and the father’s clinical psychologist:
(a)The reports of the Single Expert Witness [Mr R]; and
(b)These Orders and Reasons delivered.
13.The ICL be at liberty to request a report from [G’s] psychologist and each parent’s clinical psychologist.
14.The costs of the reports referred to in the preceding paragraph be borne by Legal Aid if funding is granted, and failing funding, by the parties equally.
15.The mother and father advise the other of any change of telephone number, email address or residential address within 24 hours of such change occurring.
16.The mother is to notify the ICL and the father by email:
(a)If [G] does not attend school and set out the reason for [G’s] absence and provide a copy of any medical certificate.
(b)Of [G’s] medical appointments including the date of any appointment, the name of the health care practitioner, their address, the reason for the attendance, the outcome of any attendance including provision of any reports, tests or referrals.
17.The mother is to provide to the father and the ICL any school reports or correspondence from the school in relation to [G’s] attendance and any concerns raised by the school in relation to [G’s] behaviour and/or performance.
18.The father be at liberty to communicate with [G’s] school in relation to [G’s] attendance, progress and general well-being, including obtaining access to all school newsletters or other information concerning [G.]
19.The ICL be at liberty to provide a copy of these orders to [G’s] school, Dr [H] and any other health care provider for [G].
20.The mother is to do all acts and things to ensure that [G] continues to attend upon paediatric [specialist] Dr [H] as required and follows all recommendations made.
21.The father be at liberty to attend on Dr [H], on terms and conditions as may be required by Dr [H], including with [G].
22.The parties be restrained by injunction and an injunction be hereby granted restraining the parties from:
(a)Denigrating each other and each other’s family to or in the presence or hearing of [G];
(b)Discussing the court proceedings in the presence or hearing of [G]; and
(c)From removing or attempting to remove [G] from the Commonwealth of Australia without the prior written consent of the other party or further order of the Court.
23.The Australian Federal Police be requested to place the said child’s name on the Airport Watch List operating at all international ports in Australia until further order of the Court or for a period of two years and the ICL do supply to the Australian Federal Police with a sealed copy of this order.
24.For the avoidance of all doubt, all therapy and psychological intervention set out in these orders be reportable.
25.The proceedings be adjourned for monitoring to 10am on 29 July 2020, with all parties having permission to attend by way of telephone.
26.The Form 2 filed 4 June 2019 be and are hereby be dismissed, save for costs.
27.The case be removed from the Judges Defended List.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
CD
Secretary
3 APRIL 2020
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