SONG and SONG

[2022] FCWA 14

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: SONG and SONG [2022] FCWA 14

CORAM: DUNCANSON J

HEARD: 13, 14 DECEMBER 2021

DELIVERED : 8 FEBRUARY 2022

FILE NO/S: 6305 of 2018

BETWEEN: MR SONG

Applicant

AND

MRS SONG

Respondent

Catchwords:

CHILDREN - parental responsibility - turns on its own facts

Legislation:

Family Law Act 1975 (Cth) s 4, s 60B, s 60CA, s 60CC, s 61DA, s 61DB

Category: Reportable

Representation:

Counsel:

Applicant	:	Mrs R Oakeley
Respondent	:	Mr M Rynne

Solicitors:

Applicant	:	Carr & Co
Respondent	:	Anthony R Clarke & Associates

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

Nil

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Song and Song has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

1[Mr Song], the father and [Mrs Song], the mother are the parents of [Child A], [Child B] and [Child C] who are aged 12, 10 and seven years respectively.

2On 13 December 2021 I made a number of final parenting orders by consent. Those orders are in respect of the children's living arrangements, handover, communication, notification of changes, passports, travel and injunctions. The consent orders also relate to school/extracurricular activities and medical matters.

3The parties were able to agree all but two parenting issues in relation to the children.

4Those issues were firstly, that of parental responsibility and whether the parties should have equal shared parental responsibility as sought by the father. Alternatively, whether the mother should have sole parental responsibility for the children in respect of their education and health and otherwise the parties have equal shared parental responsibility for them. The second issue related to the order sought by the father that the parties ensure the children's attendance at school, except in circumstances where a doctor has certified that they are unable to attend and the doctor's certificate is to be provided forthwith to the other party and to the children's school. The mother opposes the requirement for a doctor's certificate in respect of the children's non‑attendance at school.

BACKGROUND AND SHORT HISTORY

5The father is 45 years of age. He is [a] [professional]. The mother is 44 years of age. She [is also a professional]. The parties commenced cohabitation in 2008 and were married [in] 2008. They separated on 14 June 2018 and were divorced on 5 December 2019.

6Child A was born [in] 2009. Child B was born [in] 2011. Child C was born [in] 2014.

7After the parties separated the children lived with the mother and spent time with the father.

8On 8 January 2019 an interim order was made that the parties have equal shared parental responsibility for the children. Various orders were made providing for the children to live with the parties during the school terms and the holidays.

9On 3 April 2019 orders were made by consent providing that the children live with the father five nights each fortnight and otherwise with the mother during the school terms.

10On 2 August 2019 an order was made by consent appointing [Dr A] as single expert witness. Dr A provided a report dated 24 September 2019, answers to questions dated 18 November 2019, and a further report dated 13 April 2021.

11On 13 December 2021 I also made final property orders by consent.

THE ORDERS SOUGHT

12The orders sought by the father are contained in a brief summary of his orders sought and evidence relied upon filed 10 December 2021. The orders sought by the mother are contained in her minute of final orders sought at trial filed 13 December 2021.

THE EVIDENCE

13The father relied upon various paragraphs of his affidavits filed 27 August 2020 and 19 May 2021.

14The mother relied upon various paragraphs of her affidavit filed 25 May 2021 and her affidavit filed 8 December 2021. She relied upon the affidavit of [Dr B] filed 9 December 2021 and the reports of Dr A.

15The parties relied upon the report of [Ms D] dated 6 December 2021 and the parties referred to the report of [Dr C] dated 23 October 2020.

THE LAW

16These proceedings are determined under Part VII of the Family Law Act1975 (Cth) ("the Act").

17In reaching my decision I will be guided by the objects of that Part and the principles underlying those objects.

18Section 60B sets out the objects of the Part and the principles underlying it. The objects are to ensure that the best interests of children are met by:

(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

19In deciding whether to make a particular parenting order, s 60CA directs me to regard the best interests of the child as the paramount consideration. Section 60CC sets out how I determine what is in a child's best interests. I must consider the primary and additional considerations.

Parental responsibility

20Pursuant to s 61DA of the Act, when making a parenting order in relation to a child, the court must apply a presumption that it is in the child's best interests for the parents to have equal shared parental responsibility for the child.

21Equal shared parental responsibility imposes an obligation upon the parents to consult as to major long-term issues regarding the child and to make a genuine effort to come to a joint decision about such an issue. Major long-term issues in relation to a child are defined in the Act at s 4 as issues about the care, welfare and development of the child of a long‑term nature and includes issues of that nature about:

(a)the child's education (both current and future);

(b)the child's religious and cultural upbringing;

(c)the child's health;

(d)the child's name; and

(e)changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.

22The presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child, or family violence. The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

23Pursuant to s 61DB of the Act if there is an interim parenting order in relation to a child, the court must, in making a final parenting order in relation to the child disregard the allocation of parental responsibility made in the interim order.

THE ISSUES FOR DETERMINATION

Parental responsibility

24The father seeks an order that the parties have equal shared parental responsibility for the children, and he sets out a mechanism for consultation and failing agreement, that the parties attend family dispute resolution. The father seeks specific orders in relation to the exercise of joint parental responsibility for medical issues.

25The mother seeks an order that the parties have equal shared parental responsibility for the children except in relation to education and health, in respect of which she seeks sole parental responsibility. She proposes a mechanism for resolving disputes about education and health, but failing agreement she would make the final decision and advise the father of that decision.

26The mother deposed to communication problems between her and the father which are not new. She deposed that the parties do not trust each other and incidents of family violence during the marriage have had a great impact on her. She deposed the parties seem unable to properly communicate. She provided examples of the parties' inability to do so and the difficulties that created in relation to the children and their arrangements.

27The father denied the mother's allegations of family violence and provided his explanation for various incidents deposed to by the mother. The father deposed that the parties are capable of communicating directly with each other, and although at times communication has been difficult, he is hopeful that after the proceedings are resolved, communication will become easier. He deposed he has no difficulty continuing to communicate with the mother around matters concerning the children. In cross-examination it was put to the father that he and the mother text and email each other because they do not talk, and he said that was correct. It was further put to him that the mother does not want to talk to him, and he does not want to talk to her. He again said that was correct.

28The mother deposed the parties are not able to communicate effectively and come to an agreement in relation to most things relating to the children. She provided the treatment of Child A's anxiety as a recent example of this.

29In September 2020 Child A attended upon Dr C, Clinical Neuropsychologist at [Service A], who provided a report dated 23 October 2020. Dr C referred to concerns expressed by Child A's teachers, and reported that Child A's assessment indicated a specific learning disorder with impairment in reading and a specific learning disorder with impairment in written expression. Dr C also noted that Child A's profile on assessment was suggestive of a disorder of attention, and although an attention deficit hyperactivity disorder was considered, parent and self-ratings did not meet clinical significance.

30On 23 January 2021, Child A attended upon Dr B, Psychiatrist. The mother explained she was able to secure the appointment with Dr B as a last-minute appointment, and many of the psychiatrists she had contacted had waiting lists of over one year. On the date of the appointment, Child A was in Busselton with the father. The mother collected Child A from Busselton, took him to the appointment and subsequently returned him to Busselton.

31Dr B diagnosed Child A with an unspecified anxiety disorder in the context of a specific learning disorder with impairments in reading and writing skills and the relationship problems between his parents. Dr B prescribed Child A a trial of antidepressant/anxiolytic fluoxetine at the dose of 10 mg in the morning. In evidence, Dr B's recollection was that he spoke with Child A for about 30 minutes, with the mother for about 30 minutes and then about 15 minutes together.

32The parties communicated by email in which the mother sought the father's support for the treatment. The father had a number of concerns about the diagnosis and prescribed medication. He researched the drug suggested by Dr B, after what the father said was a very limited session with Child A, and in his affidavit filed 19 May 2021 provided commentary including a long list of side effects of the suggested drug.

33At the mother's request, Dr B reviewed Child A on 10 February 2021. The father attended that appointment and questioned Dr B's diagnosis of Child A after a 15-minute conversation. The father was not convinced that the use of the drug was the right course of action.

34The parties did not reach agreement. The mother was anxious to obtain treatment for Child A, and wrote to the father and in her email stated "If you would like to obtain a second opinion, I absolutely welcome that step". She asked him to let her know which psychiatrist he would like Child A to see and when an appointment could be made. The father said he required time to investigate seeking a second opinion. The mother subsequently wrote to the father suggesting two further psychiatrists who were recommended. The father selected one of those, [Dr E]. He said he had tried to contact Dr E's offices on two occasions, but Dr E had not been available. Ultimately nothing came of the father's enquiries. Many months have now elapsed since Child A's original appointment with Dr B.

35Counsel for the mother referred the father to Dr A's second report wherein Dr A observed that Child A came across on the available information as quite likely to have an Attention Deficit Disorder (non-hyperactive) ("ADD"). The father accepted that Dr A's opinion may have had validity, but said that he had not done anything in particular after seeing the report and he was concentrating on spending time with Child A rather than trying to take him to medical professionals. The father said he struggled to see how he could get Child A to a psychologist or get someone to treat him for ADD, if he could not get Child A to his house to see him.

36The mother deposed:

38. The situation involving [Child A] is a perfect example of the fact that [Mr Song] and I are not able to communicate effectively, even thought (sic) it is now some 3 years since we separated. We have very different views about how to parent and the decisions to be made for the children.

(as per the original)

37In about April 2021 Child A stopped spending time with the father. The mother deposed Child A resumed spending time with the father in about July, however in September, Child A again said he did not want to go back to the father's house or see him anymore. The parties and Child A attended upon Ms D, Clinical Psychologist, for family therapy at various appointments between May and October 2021. Ms D, in her report dated 6 December 2021 stated that Child A and the father were referred for reportable therapeutic counselling to assist with their relationship and Child A's difficulties around spending time with the father. Although the consent orders dated 13 December 2021 include orders as to the children's living arrangements with each of the parties, Child A is not currently seeing the father. Ms D's report was also referred to in the context of Child A's provisional diagnosis of anxiety.

38Ms D agreed that Child A experiences anxiety which is often externalised in increased hyperactive and distractable behaviour. She was of the view that Child A needs "emotional scaffolding" to rebuild his relationship with his father, and this would be best achieved through both parents agreeing to an approach to time with the father. She referred to the diagnosis of unspecified anxiety disorder, which she considered to be a reasonable provisional diagnosis, but said even with the medication, Child A would need treatment for the anxiety and would not want to be staying on any medication indefinitely. Ms D considered the medication to be more of a trial to see if it had any effect.

39Child A had seen [Ms F], Clinical Psychologist, by way of individual therapy to manage his anxiety, but those meetings ceased when he commenced seeing Ms D. As a consequence of the sessions with Ms D ceasing, at this time Child A is not receiving any therapeutic or psychiatric assistance. This is of considerable concern to the mother.

40That is not to say the father is not concerned. Ms D reported in her conclusion that Child A would benefit from therapeutic counselling directed at learning to manage anxiety in a range of contexts. However, it was the father's understanding that Ms D had said she does not see any value in continuing with the sessions and as far as he knew, "that what was where we're at, we're not having any more sessions, either myself or [Child A]". When asked what arrangements he was aware of for Child A to have ongoing therapeutic assistance in relation to his anxiety, the father said the mother mentioned in her updating affidavit that she was considering taking Child A back to Ms F, but otherwise he was not aware of anything. He had not contacted Ms F or taken any steps to obtain therapeutic assistance for Child A.

41The mother was not aware that the sessions with Ms D had ended. She is willing to continue to work with Ms D and "absolutely" agreed there needed to be a consistent approach by both parties.

42In addition to providing a report Ms D also gave oral evidence. She was of the opinion that there was a clinical way forward for the father and Child A to "mend their bridges", but it required both parents to be firm and that there should be a clear expectation that Child A would attend the appointments. Ms D is able to work with Child A and, given she is in the process of winding up her practice, when necessary recommend an alternative therapist to continue the work that is needed.

43At the conclusion of the trial, I drew the parties' attention to their positions that they did not disagree that Child A should continue therapy with Ms D, nor did they disagree that a second opinion should be obtained for Child A from a psychiatrist. Notwithstanding their consensus on these issues this treatment for Child A had not been obtained. The parties had not been able to make it happen and yet there is a need for Child A to have assistance urgently.

44With the Court's encouragement the parties agreed, and I made orders by consent to the effect that the father would contact Ms D to arrange a joint session with himself and Child A for the purposes of recommencing therapy and that the parties would also arrange a second opinion from [Dr G], Child Psychiatrist, for the purpose of assessment of Child A's anxiety.

45To the father's credit he agreed to an order that, upon receipt of Dr G's recommendations after her assessment, if the parties are unable to agree a course of medication, the mother be at liberty to elect to follow the said recommendations and the father would comply.

46This is to the father's credit because he was opposed to Child A being medicated as recommended by Dr B, but his position was that he sought a second opinion, and he did not rule out medicating Child A. This approach by the father is in the best interests of Child A. Counsel for the father however drew to my attention that the father's compliance in this respect is not to be taken as an indication that he will agree to the mother's decision in relation to health in the future and that the issue of parental responsibility with respect to health is very much still alive.

Education

47Dr A described the children as exceptional and delightful. He reported all three are quite unique and different but are very high functioning, and observed they are very clever, with excellent memory and awareness. Dr A described Child A as exceptionally smart and in the gifted range of capacity, but he also has some learning difficulties.

48Child B and C attend [School A]. Child B is well settled. The mother said Child C is not as well settled. Child A initially attended primary school at [School B], however, was subsequently moved to School A to complete primary school.

49The parties disagreed as to Child A's attendance at high school. The father sought to enrol Child A at [School C] and the mother sought to have him attend [School D]. Ultimately Child A attended [School E] which is within the catchment area and close to the mother's home. The mother deposed that as a result of the report produced by Dr C, Child A is enrolled in [Program A] at School E and is in a cohort of children with similar needs.

50Child B will commence high school in 2023. In the mother's view, School E cannot cater for Child B's needs as it does for Child A, as it [does not have a specialist program]. The mother said School D is Child B's first choice for high school as it is a [specialist school], which has a [selective process]. Further options for Child B are [School F] and [School G], although the mother was not sure if School G offered a [Program B] for [activity A]. If Child B does not obtain a place through Program B, the mother said a backup choice would be [School H]. Whilst School H is not a specialist school, the mother said it has a [good program for activity A] which the mother thinks Child B would enjoy. The mother said she would consider schools proposed by the father if Child B was happy with them.

51Child C will turn eight years of age this year. Options for high school are not yet being considered given her young age. However, in relation to Child C's ongoing attendance at School A, the mother said Child C does not have a close cohort of friends, she is very quiet, and School A is a very big school for her. The mother referred to the distance which she said has been a problem for both girls and the school has raised this with her. The mother said the distance between her home and School A is a 40 minute drive and is difficult with her work schedule changing post‑separation. The mother explained it means the girls do not get home until very late and bedtime is difficult. The mother said Child C has not settled at School A like Child B did and has not made the same progress.

52When Child B moves to high school, the mother proposes that Child C moves to a different primary school. The mother has looked at a couple of schools and is not considering the local school for Child C. The mother proposes that when she finds a school or schools she thinks appropriate, she would invite the father to consider them. The mother was asked if she would she be able to cope if Child C remained at School A. Her insightful reply was that it was not about her coping, but about Child C and she would look at the recommendation of the principal.

53It was put to the mother that she would exercise her sole parental responsibility on this issue, but she disagreed and said she would consult with the father. The mother was asked why she should make the final decision on this issue as opposed to the father. She replied:

Because historically I am the one who decides not based on my own personal benefit, what's better for me. I've made the decision on what's best for the kids, with every school, even with [School A] when we were still married. It wasn't about what was convenient, I was prepared to drive the kids from different schools, to do the run from [School B] to [School A] because they were the best schools for the kids. When the medical issues come up, I am the one who will listen to what the medical experts say. I'm the one who's listened to the teachers at the school about what is better for the kids. And I take other people's advice when I seek an expert or somebody who is qualified to guide me because I'm not a doctor, or a teacher, or an educator, or a speech therapist. I listen to what they say.

54The father is opposed to Child C changing schools from School A. In the context of Child C remaining at School A, which is close to his home, he was asked if two children (Child A and presumably Child B) were at School E whether he would contemplate moving closer to that school. The father said it was unlikely in the short-term.

The children's attendance at school

55The father seeks an order that both parties ensure the children's attendance at school, save and except in circumstances where a doctor has certified that they are unable to do so and such doctor's certificate is forthwith provided to the other party and to the children's school. The order sought by the mother in this respect is that both parties shall ensure the children's attendance at school, save and except in circumstances where the children, or any of them, are unwell.

56The father is concerned about the children's absenteeism, particularly Child A's, although he was less concerned about the attendance of Child B and C in term 4.

57The father explained that Child A's attendance at school was of concern. The school attendance records were tendered and became exhibit 5. The father noted that if attendance drops below 90%, that is a concern that needs to be addressed. Child A's attendance up until term 4 was approximately 87%. In term 4 it was 65%. Some of his absences are accounted for by a virus and having braces fitted. The father was aware that Child A had "wagged" school on several occasions.

58The mother provided reasons for Child A's absence. These included Child A having a virus for a week that resulted in him going to hospital. On another occasion, Child A had braces fitted and stayed home for a time due to pain and anxiety. The mother explained Child A was absent on another occasion due to sunburn. The mother also spoke of an occasion where she had a severe migraine and asked the children to call her family members who lived nearby. The mother said she only learned later that the children had stayed home from school that day, due to her sister-in-law working from home.

59The father said that on 1 December 2021 the mother had a migraine and none of the children went to school that day, which he was not informed about at the time. He said on a previous occasion in September or October, Child B had called him to inform him that the mother could not take them to school. The father then picked the girls up and took them. The father was not sure whether Child A attended that day or not, as Child A usually used public transport to get himself to school.

THE BEST INTERESTS OF THE CHILDREN

60Dr A provided the reports as set out at [10] above upon which the mother relied. Dr A was not required for cross‑examination and his evidence was therefore unchallenged, although there may be some aspects of it with which the father does not agree. I place weight on Dr A's reports.

61It is to the benefit of Child A, Child B and Child C to have a meaningful relationship with both of their parents.

62The mother's position is that there has been significant family violence throughout the relationship. Dr A referred to an incident between the parties which mirrored a previous sexual assault upon the mother which was for her a violation of trust. He reported this as an incident which caused the greatest concern to the mother.

63Dr A did not however see any general risks of harm to the children, and reported that neither party is likely to put the children at risk.

64Dr A reported that overall, Child A appeared to be developing quite well and described him as presenting as a boy of average ability with good manners and social development. Dr A reported that Child A comes across, on the available information, as quite likely to have an Attention Deficit Disorder (non-hyperactive). Child A told Dr A he wanted to spend most of his time at home with his mother and see his father sometimes when he wanted to.

65Dr A described Child B as a nice-natured bright girl who seemed friendly, happy to talk and showed a tendency towards anxiety. Child B was asked what it was like at the father's home and she said "not as good as mum's" but it was "pretty good". She thought it was okay to keep the current arrangements, and sometimes "really" missed her mother when staying with her father on the week-to-week in school holidays.

66Dr A described Child C as fun and bubbly. She thought both houses were good. Dr A reported she wants to be with both parents.

67The father submitted the children have a close and loving relationship with both of their parents, although he acknowledged that in the middle of 2021, his relationship with Child A became strained. Dr A reported that the children enjoy a good relationship with the mother, father, and paternal relatives. He noted that all three children clearly identify the mother as their primary attachment.

68Dr A reported:

49.In summary, these are intelligent, high functioning parents, the children have a relationship with both parents, it is evident from both the original assessment and 18 months later that the mother is still the primary attachment for at least two of the children and that she is the source of their emotional security. They enjoy a good relationship with the father and, if anything, it appears to have improved since previously.

(as per the original)

69Pursuant to interim orders dated 8 January 2019, the parties have equal shared parental responsibility for the children. The father's position is that there have been occasions where he has been excluded from being involved in the making of long-term decisions impacting the children. He seeks to be involved in the making of decisions concerning the children's education, medical specialists and to some degree extracurricular activities which involve a long-term commitment. In evidence the mother said historically she was the one that had made decisions. I am satisfied that the father sincerely wishes to be involved in decision making concerning the children, but I am not persuaded that he has consistently been proactive in that respect.

70It is not proposed that there be any changes in the children's circumstances, including a separation from either parent or other person. The parties have agreed the children's arrangements going forward and the consent orders provide for them to live with the father for five nights in every fortnight during the school term and otherwise with the mother and they spend time with both parties in the school holidays.

71There does not appear to be any practical difficulty and expense which would substantially affect the children's right to maintain personal relations and direct contact with both of their parents on a regular basis. As to the capacity of each of the parties to provide for the needs of the children, including their emotional and intellectual needs, Dr A opined that the mother is a very capable parent and the children are doing exceptionally well largely because of her influence and impact. Dr A noted the father described the mother as "mollycoddling" the children. Dr A opined that protective parenting is quite beneficial especially in children's early ages. Dr A reported that because of the mother's own background she may be a little inclined to mollycoddle, but he was satisfied she was highly capable. Dr A reported that from what he could see of the father, he is a capable parent, but Dr A did not see him having necessarily quite the same level of capacity to deal with situations emotionally, but he appeared quite adequate.

72In Dr A's first report he stated it was evident that the mother struggled with anxiety which was moderately well controlled. He opined there was some unresolved trauma due to both a non‑consensual situation with the father and a previous sexual assault. Dr A said the mother is likely to be overprotective, but quite capable.

73In Dr A's second report he reported the mother had made a significant improvement in her emotions and reactivity. He reported that the mother was in a much better place emotionally but was still worried about the difficulty of trying to co-parent. Dr A found the father friendly and cooperative, but not overly psychologically minded. The father's point of view was reported as there being not a lot of agreement around co-parenting issues.

74In Dr A's second report he reported the father thought the situation between the parties had improved slightly, but communication was still limited.

75Dr A also reported the father's view on Child A's medication:

24.In regards to [Child A], he said that there had not been any particular diagnosis, although he says [Mrs Song] says he has been. He said that [Mrs Song] was trying to get him on an antidepressant, but "I think he has normal nervousness". He did say that "He has seen a psychologist and neuropsych. There are some identified areas of issue. I think [Mrs Song] is projecting anxiety onto [Child A]". When I asked why his underachieving, he said "I don't know exactly, presumably he has some learning problems. I'm yet to get a proper assessment".

(as per the original)

76Dr A reported at the time of his second report that both parents seemed to be in a better place overall. However, he considered the children showed some issues because of the shared arrangement and some of the pressure they are experiencing with the parents wanting different arrangements.

77Dr A reported:

47.The lack of agreement around systematic treatment and intervention with [Child A] is a shame, as it is quite evident that he has learning issues which should be addressed. There are alternates should be trialled to see whether this can be improved. I would also be of the view that [Child B] is underperforming.

(as per the original)

78Dr A further reported:

48.…

However, I am confident that the mother is better able to source and action the children's psychological needs and there may need to be some consideration in regards to some sole responsibility to allow her to more fully follow up appropriate treatment. However, even then, it still requires compliance on the father's part (eg if the mother is recommended to go down a medication path, if the father does not continue the medication during his time, it is more harmful to the child to have the medication going on and off than it is not to be on the medication).

(as per the original)

79I am satisfied the mother is more attuned to the needs of the children than the father and she is well placed to make decisions about important issues concerning the children.

80All three children are highly intelligent. Although Dr A reported that Child B showed some tendency towards anxiety, it is Child A who has a provisional diagnosis of anxiety, which requires to be addressed.

81Both parties are committed and responsible parents. At the time of Dr A's first report, he saw the father as quite capable of working with the mother, but at that time the mother was suffering from quite a lot of trauma, which made it difficult for her to relate in any other way. He was of the view that if she successfully addressed the trauma she would deal with the father to a better level.

82There had been an improvement in the mother's presentation by the time of Dr A's second report, but she was still worried about the difficulty of trying to coparent, and the father acknowledged that communication was still limited.

83As to family violence, the mother deposed to an incident described by Dr A as a non-consensual situation with the father. There is no family violence involving the children or the parties at this time.

84It would be desirable to make final orders and conclude these proceedings. Finality would be of assistance to both parties and in the best interests of the children as it is likely to minimise conflict. This is an important consideration and will have a bearing on the orders to be made.

CONCLUSIONS

85Having considered the evidence in the context of the primary and additional considerations, I have come to the following conclusions.

Parental responsibility

86I must disregard the allocation of parental responsibility made in the interim order dated 8 January 2019. Notwithstanding the mother's allegations of family violence (which were denied by the father) it was not her case that the presumption that it is in the best interests of the children that their parents have equal shared parental responsibility for them did not apply. Rather, her counsel submitted the presumption had been rebutted by the evidence that the parties had not been able to make joint decisions in relation to the children's health and education and "the interim order did not function in its present form as it pertained to those issues".

87Counsel for the father submitted the parties are two highly capable parents and they have been able to resolve issues with the assistance of legal practitioners and the mother has engaged in therapy and is doing well. Counsel for the father submitted with consultation (in relation to Dr G and a second opinion) that there is every optimism that the parties will be able to reach agreement.

88I am of the view that the presumption has been rebutted in the circumstances of these parties. Nevertheless, I am satisfied it is in the best interests of the children to order that the parties have equal shared parental responsibility for making decisions about major long-term issues except those in relation to health and education.

89It is to the parties' credit that they reached agreement on many parenting issues. The fact that they could not reach agreement about decision making in respect of the children's health and education suggests that they had exhausted their negotiations. If the same applies when important decisions need to be made, this could impact directly upon the children and be contrary to their best interests. This indicates that decision making in relation to those issues should be vested in one parent.

90The order for equal shared parental responsibility requires the parties to consult as to major long-term issues regarding the children and to make a genuine effort to come to a joint decision about such an issue. The parties are able to communicate in a limited way, but their communication has not been effective in resolving their disputes. Both parties are responsible and caring parents who want the best for the children. It would be in the children's best interests that both parties have input into decisions for their long-term care, but ultimately prompt decisions must be made.

91In relation to Child A's health, the difficulty did not arise in the consultation process, as was evidenced by the parties' emails concerning Child A's attendance upon Dr B and his provisional diagnosis of anxiety. The difficulty arose in taking effective steps to achieve an outcome. For example, the parties' correspondence stalled and consequently no further steps were taken with respect to the Child A's provisional diagnosis, the treatment proposed by Dr B, or in obtaining a second opinion. The process in relation to Child A's health came to a standstill.

92The father sought a second opinion but wanted time to research this. The mother subsequently provided the names of two recommended psychiatrists. The father selected one of these psychiatrists. However, I consider he was not sufficiently proactive in arranging an appointment and obtaining the second opinion which he required and to which the mother had readily agreed.

93Historically the parties' communication has been ineffective, and this has caused delay in treatment for Child A. This situation was not dissimilar with respect to Ms D. Child A's visits to Ms D with the father came to a halt and the father's understanding was that she had said there was no value in continuing with them. That was not the case. Once again, the outcome was that Child A did not receive the therapy he required which is important to restore his relationship with the father. I consider the father was not sufficiently proactive when he said he could not arrange appointments for Child A if he did not have contact with him. In my view that is an insufficient explanation for him not having taken the necessary steps to address the difficulties.

94I take into account that Dr A is of the opinion that the mother is highly capable and competent. That is not to say the father is not also competent and caring parent, although Dr A considered that the father is not as capable or as skilled as the mother in dealing with the children. The mother impressed me as someone who placed the children's needs before her own. In particular, in relation to the children's schools, when she was asked if she would be able cope if Child C was well settled at School A, she responded it was not about how she would cope, but how Child C would cope. I am satisfied that she was sincere when she said she just wanted to ensure the children received the treatment and assistance they required. I consider that the delays in that process have not been in the children's best interests.

95I am mindful of the objects of the legislation, including that the children's best interests are met by ensuring that they have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the children. The orders proposed by both parties involve a process of consultation although the mother seeks to make the final decision in relation to health and education in the event there is no agreement.

96I am confident that the mother will properly consult with the father. She impressed me with her willingness to accommodate him. This can be seen in her agreement to obtain a second opinion as sought by the father in relation to Child A's provisional diagnosis, and subsequently providing the names of two recommended practitioners for his consideration. I was also impressed by her proposal that the father should contact Ms D to arrange family therapy, and she will ensure Child A will be available. She said she knows Child A's availability which is most nights but Child A would be anxious about missing [Activity B].

97The same can be said in relation to the mother's efforts in finding appropriate schools for the children. In this context and having regard to the mother's evidence, I have confidence that she will comply fully with an order in the terms sought by her and only if after consultation there is no agreement, she will have the ultimate decision. In all the circumstances I have concluded that such an order should be made.

98This should not be seen by the father as excluding him from decision making, nor should he see it as him being any less important in the lives of the children. The children live with both parties, albeit in an unequal arrangement, and the children have much to gain from each of their parents. The purpose of the order is to ensure that important decisions in relation to health and education are made promptly as that is in the children's best interests.

Attendance at school

99I am not persuaded it would be in the best interests of the children to make the order sought by the father that the parties ensure the children attend school save and except in circumstances where a doctor has certified that they are unable to do so, and such doctor's certificate is forthwith provided to the other party and to the children's schools. While I understand the father's concern as to absenteeism, I am not persuaded that the requirement to obtain a doctor's certificate is either practical or necessary.

100The order of the father would require a party to obtain a medical certificate if a child was to be absent from school even for a reasonably trivial ailment in respect of which medical treatment would not normally be required, for example a cold or a sore throat. Such an ailment might be enough to keep a child from attending school but is not one that a parent would necessarily seek medical attention for.

101Practically speaking, it may not be possible for a party to get an appointment with a general practitioner on the day of absence. There would be little point in obtaining an appointment, for example, the following day when the child had returned to school.

102I consider the mother provided appropriate reasons for the children's non-attendance as described above. In relation to Child A, an example was that he was anxious after his braces were fitted. This was a sufficient reason for the mother to keep him home from school but is not a reason for her to seek medical attention.

103Both parties consider the children's education to be important. I consider that both parents can be trusted to ensure the children's best attendance at school and that the children are not likely to be absent without good reason. It is to the father's credit that he took two of the children to school on a day when the mother was unwell and unable to take them.

104An order such as that sought by the father is likely to cause more conflict, and may give rise to further proceedings, such as contravention proceedings.

105It is a concern if Child A is "wagging school", the parties should make enquiries of the school to address this situation.

THE PROPOSED ORDERS

106Subject to hearing from the parties, I propose to make the following orders:

1Subject to orders 3 and 4 hereof, the parties have equal shared parental responsibility for the children, [Child A] born [in] 2009, [Child B] born [in] 2011 and [Child C] born [in] 2014 ("the children").

2Unless contrary to the children's immediate welfare, the parties shall, before making any major long-term decision about the children:

(a)consult each other in writing setting out any major long-term decision-making proposal and the reasons for that proposal;

(b)give proper consideration to the proposal and respond in writing in a timely manner, making a genuine effort to resolve any issues; and

(c)in the event any dispute is unable to be resolved, the party making the proposal shall consult with a Family Dispute Resolution practitioner and invite the other party to attend to resolve the dispute.

3The mother have sole parental responsibility for making decisions about the education and health of the children.

4Before the mother makes a decision as it relates to the health or education of the children:

(a)the mother shall contact the father in writing via email and provide her views about any such issue;

(b)the mother shall consider any views expressed by the father about any such issue;

(c)the mother and the father shall make a genuine effort to come to a joint decision about any such issues; and

(d)if no agreement is reached between the parties, then the mother shall make the final decision and advise the father in writing via email of her decision about any such issue.

5Both parties shall ensure the children's attendance at school, save and except in circumstances where the children or any of them, are unwell.

6The proceedings be otherwise dismissed.

7All 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.

8In relation to material tendered as an exhibit into evidence in these proceedings:

(a)all parties must collect the exhibits tendered by them ("their exhibits"), from the chambers of Justice Duncanson, at least 28 days, and no later than 42 days, from today's date;

(b)all parties must contact the chambers of Justice Duncanson to arrange the collection of their exhibits;

(c)in default of compliance with subparagraph (a), all material tendered as an exhibit, save and except for material produced pursuant to subpoena, will be destroyed by the court without notice to the parties.

9In the event of an appeal being lodged prior to the expiration period of 42 days, paragraphs 7 and 8 above do not apply.

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

RM

Associate

8 FEBRUARY 2022