SILVER and TRAINOR

[2020] FCWA 5

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: SILVER and TRAINOR [2020] FCWA 5

CORAM: SUTHERLAND CJ

HEARD: 28 & 29 OCTOBER 2019

DELIVERED : 9 JANUARY 2020

FILE NO/S: PTW 2290 of 2017

BETWEEN: MS SILVER

Applicant

AND

MR TRAINOR

Respondent

Catchwords:

CHILDREN - With whom a child lives and spends time - Case turns on its own facts

Legislation:

Family Court Act 1997 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr Bloxham
Respondent	:	Ms Taylor

Solicitors:

Applicant	:	Bloxham Legal
Respondent	:	O'Sullivan Davies

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

Godfrey & Sanders (2007) 208 FLR 287

Goode & Goode (2006) FLC 93-286

Mazorski & Albright (2007) 37 Fam LR 518

McCall & Clark (2009) FLC 93-405

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 Silver & Trainor has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).

INTRODUCTION:

1[Ms Silver] ("the mother") and [Mr Trainor] ("the father") were unable to reach final agreement about parenting issues concerning their young son named [J]. The parenting proceedings were complicated by the facts that: (1) the father and J live in [Regional Town A], approximately 2 ½ to 3 hours’ drive from the Perth metropolitan area where the mother resides; (2) there was no suggestion that the mother would consider relocating back to Regional Town A; and (3) the father was adamant that he would not relocate to Perth, as he intended to remain living and working in Regional Town A in the foreseeable future.

2During the trial:

a)The parties reached substantial agreement in relation to various parenting issues,[1] including that they have equal shared parental responsibility for J.

b)During the trial, the parties gave little, if any, attention to a number of other parenting orders sought by them in their respective Minutes; and counsel for both parties did not address these issues at all during their closing submissions.[2] Accordingly, I intend to treat such issues as having been effectively abandoned by both parties.

[1] At the commencement of the trial, the father’s counsel indicated that the father consented to orders in the terms of paragraphs 1, 2, 8(b), 8(c), 8(d), 9, 11, 12, 16, 20, 25 and 26 of the mother’s Minute attached to her Papers for the Judge filed 14 October 2019.

[2] For example: (1) refer to paragraphs 8(a), 8(e), 13, 14, 15, 17, 18, 19, 21, 22, 23 and 24 of the mother’s Minute attached to her Papers for the Judge filed 14 October 2019; and (2) refer to paragraphs 6(a), 6(b), 9, 10, 11, 13, 14 and 15 of the father’s Minute filed 30 October 2018.

3The key issues that remained in dispute were as follows:

a)Whether J should continue to live with the father in Regional Town A or instead move to live with the mother in Perth; and

b)The arrangements for J to live with and/or spend time with the non-residential parent, including the location for handovers.

4In summary, the father’s position was that J continue to live with him for the majority of the time, and otherwise live with the mother on alternate weekends during the school terms, for the majority of the school holiday periods and on specified special occasions. The father also proposed that unless agreed in writing, handovers take place at a [general store] in [Regional Town B], approximately half way between the parties’ two homes.[3] On the other hand, the mother’s position was that J should live with her and spend time with the father for three weekends out of every four during the school terms, for half of the school holidays and on specified special occasions. She otherwise proposed that handovers either take place at J’s proposed new school or close to her home in Perth.[4]

THE EVIDENCE:

[3] Refer to paragraph [7] the father’s Minute filed 30 October 2018.

[4] Refer to paragraph [10] of the mother’s Minute attached to her Papers for the Judge filed 14 October 2019.

5The father has been legally represented throughout the proceedings, and the mother since May 2017. The mother relied on her trial affidavit[5] and two supplementary trial affidavits.[6] The father relied upon his trial affidavit,[7] together with affidavits of his parents.[8] Each of the parties and their witnesses also gave some brief updating oral evidence in chief. Both parties also relied, to a greater or lesser extent, on the evidence of the single expert witness. Each party and the father’s parents were cross-examined by the counsel for the other party. The single expert was cross-examined by both counsel.

[5] The mother’s trial affidavit was filed on 17 September 2018.

[6] The mother’s supplementary trial affidavits were filed on 25 October 2018 and 18 October 2019.

[7] The father’s trial affidavit was filed on 22 October 2018.

[8] The affidavits of the paternal grandmother and grandfather were filed 23 and 24 October 2018 respectively.

6I considered that the mother was an unimpressive witness. I formed the view that she was not prepared to be open or fulsome in relation to a number of significant issues. For example, it was only during the mother’s oral evidence that she revealed any specific information about her employer, her work hours, her partner’s work hours, where she lived, where her older son [B] attended school and what specific arrangements she proposed to make for J’s schooling and supervision in the event that he lived with her, given that she was now working full time. The mother also maintained under cross‑examination that the only illicit drug she had used (historically) was marijuana, whereas the single expert said (under cross‑examination) that the mother had told him during their second interview that she had also used ecstasy and amphetamines.

7As a further example, I am satisfied that the mother was not prepared to be candid or open about B’s history of significant behavioural problems. The mother only grudgingly made concessions in this regard when pressed during her cross-examination. I am satisfied that B has a history of significant behavioural issues, including at school and at day care: slamming a door at day care and dislocating a worker’s hand,[9] regularly trying to leave school, tipping over furniture and kicking doors at school, swearing, screaming and being physically violent to class mates; and at home: damaging furniture, kicking holes in walls and being physically violent to J. I am also satisfied that as recently as late 2016, the mother expressed considerable frustration and distress to the father about her difficulties in managing B’s behaviour. I had little confidence in the veracity of the mother’s assurances that B currently has no behavioural issues, particularly in circumstances where she only disclosed details of B’s current school during her cross-examination.

[9] The mother conceded that B had not been permitted to attend before / after school care after injuring the child-care worker in 2016.

8The mother regularly responded to questions that she could not recall or did not know. For example, the mother maintained that she did not know what her leave entitlements were each year, including whether she was entitled to annual leave, sick leave, or carer’s leave. However, I gained the strong impression that rather than any failure of memory or lack of knowledge, the mother was simply not prepared to be open and honest in answering questions about some topics. At times, when the mother did answer a question, she tended to go off on tangents and not answer the actual question put to her. I am satisfied that the mother understood what was happening and was not confused by, or misunderstood, the questions put to her. The mother recently completed a tertiary degree and impressed me as being an intelligent young woman.

9On the other hand, the father and his parents impressed as being very straightforward and down-to-earth people. They were frank, open and credible in giving their evidence and I had no hesitation in accepting their evidence.

10The single expert was appointed by the court in December 2017 to prepare a report in relation to the family. He conducted meetings and observations of the various family members in February and March 2018 and published his report in May 2018. I considered that the single expert was helpful and considered in giving his evidence. In particular, in his oral evidence at the trial, the single expert was at pains to point out that he had not had any contact with the family for nearly two years. Accordingly, it was difficult for him to express views about various matters, including making any recommendations at trial as to J’s future living arrangements. The single expert also appropriately conceded that:

a)He had failed to record in his report the mother’s disclosure to him during her second interview that, as a teenager, she had used ecstasy and amphetamines as well as marijuana. That omission was significant,[10] and his report was accordingly misleading in relation to the mother’s past drug use.

b)Given the passage of time and the evidence that J was doing well in his father’s care, then there were no obvious benefits in moving J to the mother’s primary care, and it would be a greater disruption to J now if he was moved to live primarily with the mother.

FACTUAL BACKGROUND:

[10] Particularly as the mother maintained under cross-examination that the only illicit drug she used historically was marijuana.

11The father was born [in] 1993 and is now 26 years old. The father left school at approximately 15 years of age and became an apprentice [tradesperson] in his parents’ [contracting] business, based in Regional Town A.

12The mother was born [in] 1993 and is also 26 years old. I am satisfied that when she was approximately 16 and 17 years old, the mother had a very tumultuous relationship with her family, including: engaging in violent acts towards various family members and/or their property; running away from home to spend time with her boyfriend; regularly using various illicit drugs; and engaging in criminal activities, including violence-related offences. The mother ended her relationship with her boyfriend sometime after falling pregnant with B.

13The parties commenced a relationship in or about November 2010. B was born [in] 2011. B suffered from significant developmental and behavioural issues after his birth and was eventually diagnosed with autism spectrum disorder in 2016.

14The parties started living together in Regional Town A in May 2011. They never married. I am satisfied that the parties experienced ongoing difficulties in their relationship, including arguing and being verbally abusive to each other. The father acknowledged that during one argument, he grabbed hold of the mother, but denied injuring her in any way. Although each of the mother and the father also alleged that the other occasionally perpetrated physical violence against her/him and consumed alcohol to excess, I am not satisfied on the available evidence that this was the case. In any event, both parties conceded that there were no longer any concerns in this regard.

15In their respective documents, the parties were in dispute as to the date of J’s birth: the mother maintaining it was [early 2013] and the father maintaining it was [early 2014]. This issue was also never addressed during the trial.[11] After J’s birth the father continued to work as [a contractor] in his parents’ business and the mother was the primary carer of the two children. In April 2014, the parties separated for a few weeks. The mother and the children lived with the maternal grandmother during this time. The parties resumed cohabitation shortly afterwards. In August 2015, the mother and the two children moved to Perth to enable the mother to pursue university studies. She initially lived with her sister and then in a rental property in [Suburb A]. The father continued to work in his parents’ business. The parties lived together on most weekends and during school holidays, either in Perth or in Regional Town A.

[11] Prior to making final orders, I intend to require the parties to provide a copy of the child’s birth certificate to the court.

16Although the mother maintained that the parties separated on a final basis in January 2016, I am not satisfied this was the case.[12] The parties continued to live together most weekends and during school holidays, and the father continued to financially support the family. In April 2016, the father arrived at the Suburb A property to find the mother with a male friend named [M]. I am satisfied that the father and M had a physical altercation, after which M left the property. Thereafter, the father continued to travel down to Perth on weekends and stayed with the mother and the children. I am satisfied that the parties separated in or about July 2016, after the mother informed the father that she had commenced a relationship with M.

[12] Albeit I am satisfied that they continued to have significant difficulties in their relationship, including regular arguments.

17After separation, J continued to live with the mother and spend time with the father on a regular basis.

18In late 2016, the father formed a relationship with his (now) wife, [L], who lived in Perth with her two children.

19In December 2016, the mother sought the father’s permission for J to travel with her and other maternal family members to [Country A] in early 2017. I accept the father’s evidence that he did not immediately consent to the travel, but told the mother that he would consider her request. Shortly afterwards, when J came into the father’s care to spend time with him, the father discovered that J was suffering from severe sunburn, which he then treated. On 3 January 2017, J again came into the father’s care to spend time with him. The father subsequently refused to consent to J’s travel to Country A and retained J in his care. I accept the father’s evidence that he was concerned about the possibility of J picking up an infection in Country A, particularly as the burn had still not healed, and he was also concerned about J being exposed to fighting and excessive alcohol consumption by the maternal family members.

20On 11 January 2017, the mother attended at the Family Court intending to file proceedings for a recovery order. After speaking with a duty lawyer, she decided not to proceed with an application. The mother subsequently went with her other family members on the planned holiday to Country A and J remained in the father’s care.

21After the mother’s return from her holiday to Country A the parties attended mediation arranged through Legal Aid on 15 February 2017. Both parties were represented by solicitors at the mediation. The parties reached agreement at mediation and entered into a written parenting plan on 15 February 2017. The parenting plan provided for the parties to have equal shared parental responsibility for J, for J to live with the father and spend time with the mother each alternate weekend, during the mother’s university breaks and school holidays, and on various specified special occasion days, on the basis that handovers took place in Regional Town C.

22On 19 April 2017, the mother commenced urgent parenting proceedings in this Court, seeking orders that J live with her. In her documents the mother made various allegations against the father about physical violence, alcohol abuse and neglect. As at 19 April 2017, J was spending time with the mother pursuant to the terms of the parenting plan and was due to be returned to the father’s care on 22 April 2017. However after filing her application, the mother declined to return J to the father’s care. On 27 April 2017, the father also filed an application seeking a recovery order for J’s return. I accept the father’s evidence that at the time of filing his application, he was unaware that the mother had also filed an application.

23At the first return date on 15 May 2017, the court made interim orders for J to live with the father and for J to be immediately returned to the father’s care. The matter was otherwise listed to an interim hearing. I accept the father’s evidence that after the orders were made, the mother and the maternal grandmother both expressed their unhappiness with the outcome and the maternal grandmother yelled at the father in the court precinct.

24In August 2017, interim consent orders were then made for the parties to have equal shared parental responsibility for J, for J to live with the father and spend time with the mother for three weekends out of every four during the school terms, during school holidays and on special occasions. Orders were also made for handovers to take place at various locations, including in Suburb B and in Regional Town D.

25[In mid] 2018, the father married L. Following their marriage, L and her children continued to live primarily in Perth, and the father continued to work and primarily live in Regional Town A. The father and L generally spent weekends and school holidays together, either in Perth, in Regional Town A or at other locations close to J’s handover locations. I accept the father’s evidence that he and L have agreed that until such time as her two children complete high school in Perth in 2023, L will continue to live primarily in Perth and the father will continue to live primarily in Regional Town A. Thereafter, they will look for a home together either in Regional Town A or in another town in the same general locality.

26At the time of the trial, the father was a qualified [tradesperson] and continued to work in his parents’ contracting business on a full-time basis. The paternal grandfather, who was 51 years old at the time of the trial, also worked full time in the business. The paternal grandmother, who was 47 years old at the time of the trial, worked part time in the business, in an administrative capacity, and otherwise assisted the father with J’s care as and when required. The father and J lived in a property owned by the paternal grandparents in Regional Town A, in close proximity to their home. J attended primary school in Regional Town E, which is approximately 12 kilometres from Regional Town A.

27As at the time of the trial, the mother worked full time as [an administrator] with [a professional services firm] in the Perth CBD, having started with the company in April 2019. The mother lived with M and B in Suburb A. B attended [Primary School A], which is approximately a five to 10 minute walk from the mother’s home. There was little, if any, evidence in relation to M’s circumstances, save that he had very recently commenced some form of full‑time employment.

APPLICABLE LAW:

28These proceedings are determined under Part 5 of the Family Court Act 1997 (WA) ("the Act"). In reaching my decision I will be guided by the objects of that Part and the principles underlining those objects. Section 66 sets out the objects and the principles underlying them. The Full Court in Goode & Goode made clear that when a parenting order is sought, whether it be final or interim, the starting point is the application of a presumption that it is in the best interests of the child that the child’s parents have equal shared parental responsibility, subject to the qualifications set out in the relevant section.[13] In this case, the parties agreed and I am satisfied that it is in J’s best interests that a final order be made for the parties to have equal shared parental responsibility for J.

[13] Goode & Goode (2006) FLC 93-286,[56].

29If I am satisfied that I should make an order for equal shared parental responsibility then I must also consider the obligations placed upon me by s 89AA of the Act which requires me to then consider whether the child should spend equal time or substantial and significant time with each parent. In this case, both parties agreed that it was not practicable for J to spend equal time or substantial and significant time with each parent, given the geographical constraints. Accordingly I must, pursuant to s 66A of the Act, consider the best interests of the Ns the paramount consideration. In determining what is in a child’s best interests I must consider the matters set out in s 66C of the Act. I now turn to a consideration of the relevant factors as required by the legislation. Where I do not refer to a factor, it is because I consider that it is not relevant in this case.

PRIMARY CONSIDERATIONS:

30The Full Court in McCall & Clark approved of the decision of Brown J in Mazorski & Albright, wherein she concluded that "a meaningful relationship…is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one".[14] However, what the legislation aspires to promote is a meaningful relationship, not an optimal one.[15]

[14] McCall & Clark (2009) FLC 93-405, [115] and [121]; Mazorski & Albright (2007) 37 Fam LR 518, [26].

[15] Godfrey & Sanders (2007) 208 FLR 287, [36]; Moose & Moose (2008) FLC 93-375, [70].

31It was not in dispute and I am satisfied that there is a positive benefit to J in having and maintaining a meaningful relationship with each of the parties.

32Notwithstanding some historic allegations, by the commencement of the trial, both parties agreed and I am satisfied that J was not at risk of harm in the care of either parent.

ADDITIONAL CONSIDERATIONS:

33It was not in dispute and I am satisfied that J is a happy, well‑adjusted, sporty and robust young child, who enjoys school and is making very good progress at school. J loves his parents and his grandparents.

34J met with and/or was observed by the single expert with various family members on a number of occasions in early 2018. At that time, although J wanted to spend more time with each of his parents, he did not articulate a clear preference to live with one parent over the other. The single expert had no further contact with J (or the parties) after this time and was not requested to provide an updated report to the court as to J’s current views. Even if there was evidence from the single expert about J’s current views, given that he was only six or seven years old at the time of the trial, I am not satisfied that J is developmentally mature enough to make a considered decision about his living arrangements.

35I am satisfied that J has close and loving relationships with the parties and his paternal grandparents, who are regularly involved in J’s daily life. I am also satisfied that J has a good relationship with B, notwithstanding some challenges. J told the single expert about his past difficulties with B. The mother’s counsel also acknowledged in his opening address that J’s relationship with B has been difficult at times. I am also satisfied that J enjoys good relationships with his other extended paternal and maternal family members, including M, L and her two children.

36I am satisfied that the father has taken every opportunity to participate in making decisions about major long-term issues concerning J, to spend time with J and communicate with him. Whilst I have no doubt at all that the mother loves J very dearly, I am satisfied that since J has lived with the father, the mother has not taken up the opportunity to travel to Regional Town A to spend time with J or attend J’s school and other special events, such as his birthday parties. I accept that when the mother was studying, she may have found it difficult to afford the travel costs on a regular basis. However, this does not explain why she never made any arrangements to travel to Regional Town A at all, including after she obtained full-time employment in April 2019.

37The mother maintained that she wanted to attend events in Regional Town A, such as J’s birthday party, but was told by the father she was not allowed to bring anyone with her. I am not satisfied that was the case. I accept that the father asked the mother not to bring the maternal grandmother to the birthday party given the maternal grandmother’s outburst after the recovery order hearing. However, I am not satisfied that the father otherwise attempted to put any restrictions on the mother either spending time with J or attending school and other special events in Regional Town A. The mother also identified various other reasons for not travelling to Regional Town A, including being concerned that people would gossip about her and wanting to avoid any hostility with the father. However, in my view, there was little, if any evidence, from which I could conclude that the mother’s concerns in this regard had any real foundation.

38Interestingly, although the mother maintained that B no longer experienced any significant behavioural issues, she also identified the impracticability of travelling with B (or making any satisfactory arrangements for him to be cared for in Perth while she was absent) as a reason for not travelling to Regional Town A.

39The mother is currently assessed to pay child support on the basis that her annual income from her most recently filed income tax return totalled approximately $27,000 per annum. The mother has been in full-time work since April 2019 and earns approximately $55,000 per annum. It was unclear from the mother’s evidence whether she had notified the Child Support Agency of her new employment and income. Assuming that J remains in the father’s care, then the amount of child support is likely to increase as and when the mother files her next income tax return. The father otherwise financially supports J from his income.

40Neither the mother nor the father propose orders that would have the effect of separating J from his parents, B or any other extended family member.

41The parties live a significant distance apart. I accept the father’s evidence that it is a 2 ½ to 3 hour drive from Regional Town A to Perth and that in order to deliver J to the mother on Friday afternoons in Perth, J must leave school early. I am satisfied that if the handover location was at a mid-point, rather than in Perth, then J would be unlikely to miss any school on Friday afternoons.

42The mother maintained that J should spend time with his non‑residential parent for three out of every four weekends during the school terms, whilst the father maintained it should be each alternate weekend. I accept the father’s evidence that the current arrangement of three out of every four weekends severely limits J’s ability to participate in any weekend extra-curricular activities with his class mates and/or paternal family members. I also accept the single expert’s evidence that as J gets older, he will become increasingly frustrated with the amount of travel.

43Whilst the mother conceded that J “might” get tired from all the travel, she maintained that he had to do the travel regardless. The mother was not prepared to concede that it would be better for J to travel less often (for example: on alternate weekends rather than three out of every four weekends) or for the travel to coincide with long weekends, to reduce the pressure on J. Given J’s young age and the distances involved, I am satisfied that J is very likely to find the constant travel wearying. I am not persuaded that an arrangement whereby J is required to travel between Perth and Regional Town A for three out of every four weekends during the school terms is in J’s best interests.

44The father and the paternal grandparents were open and transparent in relation to the care arrangements that have been put in place for J since February 2017, and their (and J’s) involvement in their local community. Whilst the mother (through her counsel’s cross‑examination) appeared to question the father’s capacity to care for J and the paternal grandparents’ capacity to assist the father with J’s care, as a result of their “busy” lives, I am satisfied that these concerns were unfounded. Rather, I am satisfied that the paternal family’s “busy-ness” was simply a reflection of them and J being well-liked, active and engaged members of their community. I am satisfied that the father has demonstrated he is well able to meet J’s needs and that J is thriving in the father’s care.

45In his 2018 report, the single expert stated that the father impressed as a competent and child-focussed parent, he engaged in a wide variety of activities with J and had a strong capacity to provide for J’s needs. I am satisfied that this remains the case.

46In his 2018 report, the single expert expressed some concerns about the father’s overtly resentful attitude towards the mother during interviews and the potential for him to say negative things to J about the mother. The single expert also questioned the father’s ability to encourage J’s relationship with his mother. However, I am not satisfied that the single expert’s fears were borne out over time. Even if the father was resentful of the mother in early 2018, I am not satisfied on the available evidence that he remains so. I am satisfied that the father has acted in a positive, child-focussed manner in relation to J’s relationship with the mother. For example, the father agreed to the mother spending significant periods of time with J during school holidays in 2018 and 2019 (and without the necessity for the parties to have to come back to court to seek further orders in this regard).

47On the other hand, I am satisfied that J’s care arrangements in the event that he returned to live with the mother in Perth were unclear and uncertain. I concur with the father’s submission that the mother limited the evidence she put before the court in this regard. There was little, if any, specific evidence in the mother’s affidavits as to her proposed care arrangements for J, including: (1) specifically where J would reside and attend school; and (2) what specific arrangements the mother would make for J’s supervision, including getting him to and from school, particularly now that both she and M worked full time. Although the mother maintained that she would have extensive family support and assistance in caring for J, none of her family members swore affidavits in support or were otherwise called to give evidence.

48During the trial, the mother’s oral evidence was that she could make arrangements with her employer to work from home on a part‑time or full-time basis as necessary, so as to be available to care for J (and B) when not at school. In cross-examination, the mother conceded that: (1) there was no evidence from her employer to this effect; (2) she had only worked from home on approximately five occasions since starting with her employer; and (3) she had not previously sought to work from home on a part-time or full-time basis so as to be available to care for B when he was not at school (albeit M was, at least until very recently, able to collect B from school each afternoon).

49Prior to J moving into the father’s full-time care, the mother appeared to struggle at times to cope with B’s behaviour and complained to the father about her difficulties. J was exposed to, and subjected to, B’s difficult and/or violent behaviour. I was not persuaded by the mother’s assurances that B’s behavioural issues have now resolved. In the circumstances, I am unable to make any findings as to the likely dynamics in the mother’s home, in the event that J was living primarily with the mother and B.

50The mother conceded that if J continued to live with the father, and she was not available to care for J during school holidays (for example, due to her work commitments), then J should remain in the father’s care. The mother also had no objection to giving the father prior notice of her intention to take annual leave so that she could spend time with J during school holidays. I considered that such arrangements were appropriate.

51There are no other matters that I consider relevant.

CONCLUSIONS:

52The parties agreed that they should have equal shared parental responsibility for J. Both parties also agreed that it was not practicable for J to spend equal time or substantial and significant time with each parent, given the geographical constraints. Accordingly I must, pursuant to s 66A of the Act, consider J’s best interests as the paramount consideration. In short, I consider that it is in J’s best interests that he continue to primarily live with the father; and otherwise live with the mother on alternate weekends during the school terms and during school holidays in accordance with the orders sought by the father for the following reasons:

53I am satisfied that J has a close and loving relationship with his father and his paternal grandparents. In the nearly three years since J has lived with his father, J has thrived. The father has demonstrated that he: (1) is well able to meet J’s needs; and (2) has a positive, child-focussed attitude towards his parenting obligations. The father has strong support from the paternal grandparents in caring for J. The paternal family are active and engaged members of their local community, which can only benefit J.

54On the other hand, while I am also satisfied that J has a close and loving relationship with the mother, I have much less confidence in the mother’s capacity to meet J’s needs, including his emotional needs, given the way in which she chose to present her case. Her evidence was unclear and uncertain, for example in relation to: (1) J’s proposed care arrangements; (2) the support she would receive from her extended family members; and (3) B’s current behaviour and management.

55I am satisfied that J should live with the mother each alternate weekend from 5pm Fridays until 5pm Sundays during the school terms. I am satisfied that in the event the weekend falls on a long weekend, then J should remain in the mother’s care for the extra day, with handover then being at 5pm on the Monday. I am also satisfied that J should live with the mother for the majority of the end of Term 1 and Term 3 school holidays and effectively for half of the end of Term 2 and Term 4 school holidays each year. Given the mother’s concession, I am also satisfied that these orders should be subject to the mother giving the father not less than 28 days prior written notice that she has taken leave from work so as to be personally available to care for J, rather than the child having to go into day care during the school holidays.

56I am satisfied that unless otherwise agreed in writing, handovers should occur at the general store in Regional Town B. This handover location will allow for a more equitable sharing of the burden of transporting J between Regional Town A and Perth (particularly as both parties are now engaged in full-time employment), and provide a convenient location for the parties and J to take a break during the journey. I am also satisfied that in the event that the father is travelling to Perth in any event, for example, to spend time with L, then he will notify the mother accordingly and give her the option of agreeing handover at a location closer to Perth.

ORDERS:

57I propose to make the following orders.

1.All previous orders in relation to the child, [J] (“the child”), be discharged.

2.By consent, [MR TRAINOR] (“the father”) and [MS SILVER] (“the mother”) have equal shared parental responsibility for the care, welfare and development of the child.

3.By consent, each parent will be responsible for day to day decisions concerning the care of the child when the child is living with them or spending time with them.

4.The child live with the father unless as otherwise provided for in these orders.

5.The child live with the mother as follows:

a)During the school terms, each alternate weekend from 5:00pm Fridays until 5:00pm Sundays (extending to 5:00pm Mondays in the event that the Monday is a non-school day);

b)During Terms 1, 2 and 3 school holiday periods, and in addition to the time the child lives with the mother as set out in paragraph 5(a) above, the child shall live with the mother as follows:

i)In the school holiday periods at the end of Term 1 and Term 3, with the mother as follows, unless agreed by the parties in writing:

A.If the first weekend falls on the mother's weekend, from 5:00pm on the Friday in the last week of school, until 5:00pm on the final Sunday of the school holidays, with the father to forego the weekend that the child would usually live with him during that period; and

B.If the first weekend does not fall on the mother's weekend, from 5:00pm on the first Sunday after the conclusion of school, until 5:00pm on the final Friday of the school holidays

ii)In the school holiday periods at the end of Term 2, with the mother for an additional five (5) consecutive nights (totalling seven (7) consecutive nights) as follows:

A.If the first weekend falls on the mother's weekend, from 5:00pm on the Friday in the last week of school until 5:00pm the following Friday; and

B.If the first weekend does not fall on the mothers weekend, from 5:00pm on the middle Friday of the school holidays (being the mother's weekend) until 5:00pm the following Friday;

c)In the school holiday periods at the end of Term 4, the child shall live with each parent on a week-about basis as follows:

i)Commencing from 5:00pm on the last day of school, with the parent whom the child is ordinarily spending time with pursuant to paragraph 5(a) above until the following Friday at 5:00pm; and

ii)From 5:00pm on the second Friday, with the parent whom the child is ordinarily spending time with pursuant to paragraph 5(a) above until the following Friday at 5:00pm;

with such cycle to repeat for each subsequent fortnight (or part thereof).

d)Paragraph 5(b) and (c) hereof are subject to the mother giving to the father not less than 28 days prior written notice that she has taken leave from her employment so as to be personally available to care for the child during the school holidays.

6.By consent, notwithstanding any previous orders, the child shall spend time with each of his parents on special occasions as follows, unless otherwise agreed between the parties in writing:

a)or the child's birthday, the parent who does not then have the care of the child spend time with the child:

i)If the child's birthday falls on a weekday, from 3:00pm until 6:00pm on that day; and

ii)If the child's birthday falls on a weekend that he is not with the father, from 12 noon until 6:00pm on the Saturday;

b) During the Easter period:

i)In the event that Easter falls within the school holidays, in accordance with paragraph 5(b)(i) above; and

ii)If Easter falls outside the school holiday period, then the child will spend time with each parent in accordance with paragraph 5(a) above;

c)If the child is not already with the father for the father's birthday:

i)If the father's birthday falls on a weekday, the child is to have telephone contact with the father between 6:00pm and 7:00pm; and

ii)If the father's birthday falls on a weekend, from 12 noon until 6:00pm on the Saturday;

d)By consent, for the purposes of the following occasions, the spend time arrangement with the father be suspended and the child spend time with the mother as follows:

i)If the child is not with the mother for the mother's birthday:

A.If the mother's birthday falls on a weekday, the child have telephone contact between 6:00pm and 7:00pm; and

B.If the mother's birthday falls on a weekend, from 12 noon until 6:00pm on the Saturday;

ii)If the child is not already with the mother for Mother's Day, with the mother from the conclusion of school on Friday until 5:00pm on Sunday.

7.Unless otherwise agreed in writing, handover shall occur at the [the general store in Regional Town B].

8.By consent, all communication between the parties is to be kept solely in relation to information and arrangements in relation to the child.

9.By consent, the parties consult with one another and communicate in relation to the following:

a) Any proposed changes to the parenting arrangements;

b) Any proposed changes to the handover arrangements;

c) Any health issues of the child; and

d) Any proposed extracurricular activities.

10.By consent, each parent keep the other informed of their mobile phone numbers and any available email addresses, and advise the other parent of any change thereto within 7 days of such change.

11.By consent, both parties be at liberty to travel within the Commonwealth of Australia during their time with the child pursuant to these orders, or during such other times as agreed between the parties in writing, upon the travelling parent providing 30 days written notice prior to travel to the non-travelling parent including:

a) Expected travel dates; and

b)Contract addresses and contact telephone numbers that the travelling parent and the child can be reached on for the duration of travel.

12.By consent, each of the parties, their servants and agents be and are hereby restrained by injunction from:

a)Abusing, insulting, belittling, rebuking, or otherwise denigrating the other party; and

b)Discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with or in the presence or hearing of the child, or any of them, and from permitting any other person to do so.

13.By consent, the parties be restrained by injunction and an injunction is hereby granted restraining each of the parties from discussing or referring to the other party or their partners and family on any type of social media or other public electronic media platform.

14.All documents produced by named persons pursuant to subpoena be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from this order.

15.In the event of an appeal being lodged prior to the expiration period of 42 days, paragraph 14 above does not apply.

16.The case be removed from the Defended List.

17.All outstanding proceedings otherwise be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

KV
Associate

9 JANUARY 2020