STOJANOV and IMERI
[2020] FCWA 188
•5 NOVEMBER 2020
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: STOJANOV and IMERI [2020] FCWA 188
CORAM: O'BRIEN J
HEARD: 29 & 30 SEPTEMBER 2020
1 OCTOBER 2020
DELIVERED : 5 NOVEMBER 2020
FILE NO/S: PTW 6219 of 2014
BETWEEN: MS STOJANOV
Applicant
AND
MR IMERI
Respondent
Catchwords:
PARENTING - Where the parties have a highly conflictual relationship - Where each alleges that the child is at risk of harm in the care of the other - Where allegations not made out - Where the primary risk to the child is of emotional harm from exposure to conflict - Where late in the trial parties agreed to engage in personal and family therapy - Turns on its own facts.
PARENTING - Role of the Single Expert Witness - Where the Single Expert Witness recommended that the father retain the child to protect him from risk at the hands of the mother - Where that recommendation was made before meeting the mother and without arranging to meet her husband - Where the recommendation was reversed days later - Where the steps taken increased the conflict between the parties and contributed to the polarising of their views and proposals - Where no weight is placed on the opinion evidence of the Single Expert Witness.
Legislation:
Family Court Act 1997 (WA)
Category: Reportable
Representation:
Counsel:
| Applicant | : | Self-Represented Litigant |
| Respondent | : | Self-Represented Litigant |
| Independent Children's Lawyer | : | Mr Scott |
Solicitors:
| Applicant | : | Self-Represented Litigant |
| Respondent | : | Self-Represented Litigant |
| Independent Children's Lawyer | : | CMS Legal |
Case(s) referred to in decision(s):
Banks & Banks (2015) FLC 93-637
Bondelmonte & Bondelmonte (2016) 259 CLR 662
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 Stojanov & Imeri has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).
1[Ms Stojanov] (“the mother”) and [Mr Imeri] (“the father”) lived together in a de facto relationship for a brief period in 2014. They are the parents of one child, [P] born [in] 2014. They have been litigating in this court about the arrangements for P’s care since proceedings were commenced by the father on 28 October 2014, with little respite; comprehensive parenting orders were made on 3 March 2017 after a trial, and the parties were back in court within a year. Those proceedings in turn were dismissed by an order made on 3 September 2018. The present proceedings were commenced by the mother’s application filed on 18 February 2019.
2Between them, the parties have filed some 27 applications and responses, including five contravention applications, over P’s short life. Each has been found by the court to have contravened orders without reasonable excuse. They have participated in over 37 separate court events, including numerous interim hearings, various conferences, and now two trials.
3As will be seen, while both would claim to be solely or at least primarily focused on P’s best interests, in reality P is both the battleground and the casualty in the ongoing war between them.
4Regrettably, in the present proceedings what were already difficult circumstances were exacerbated by interventions by the Single Expert Witness (“SEW”) Mr [T], as outlined later in these reasons.
The parties, their partners, and central allegations of risk
5The mother was born [in] 1989, and is employed as [a security officer]. She is married to Mr [G]. P is her only child.
6The father was born [in] 1980. He is a [tradesperson] by trade, but on his evidence has been unemployed for some considerable time and is reliant on Centrelink benefits. He says that he is endeavouring to set up a business repairing [equipment]. He lives with his fiancée, [Ms C]. P is his only child. Ms C has four children from two marriages; the two children from her first marriage are both adults, and the two children from her second marriage presently live with their father. Ms C and her former husband are presently involved in proceedings in this court in relation to the arrangements for those children.
7As will be seen, each party asserted that P is at risk in the care of the other not merely by reference to issues they perceived with the other parent, but also by reference to issues they perceived relating to Mr G and Ms C.
8The mother has one conviction, in 2017, for driving with a blood alcohol level in excess of .08. Mr G was convicted in 2006 of six counts of gaining benefits by fraud, one count of possession of an unlicensed firearm, and one count of possession of unlicensed ammunition. He has a further conviction for disorderly behaviour in 2006. In 2016 he was convicted for possession of a prohibited drug, and possession of prohibited drugs with intent to sell or supply; the offences involved steroids. In 2018, he was convicted of common assault.
9The father alleges that P is at risk in the care of the mother both because the mother has smacked him across the face, and otherwise physically disciplines him inappropriately, and because P is exposed to family violence between the mother and Mr G.
10The father was convicted in 2005 of possession of a controlled weapon. That conviction occurred after police stopped him over concerns about his manner of driving, and a sword in a scabbard was located on the floor on the passenger side of his vehicle. In 2012 he was convicted of carrying an article with intent to cause fear; the conviction arose as in the context of a dispute and verbal altercation following a minor traffic accident, he became angry over the damage to his vehicle and picked up a loaded spear gun, threatening the other driver with it. In July 2016 he was convicted of driving with a prescribed illicit drug, and possession of a prohibited weapon. The conviction arose after he was stopped for a random breath and drug test, tested positive for methyl amphetamine, and had knuckle dusters in his possession. In February 2017, he was convicted of possessing a controlled weapon, possessing a prohibited weapon, and as an unlicensed person possessing firearms or ammunition. That conviction arose when, in executing a search warrant at the home occupied by the father, the police located a high-powered laser pointer, knuckle dusters, and four rounds of live ammunition. In the course of the same search, the police located approximately 4.25g of methyl amphetamine, an MDMA tablet, and a smoking implement. The father asserted that the drugs and paraphernalia belonged to another occupant of the house, and was not convicted.
11Ms C has no criminal convictions. She has, however, suffered from mental health issues and attempted suicide as recently as March 2020.
12The mother alleges that P is at risk in the care of the father on the basis that he has a propensity for violence, is a drug user, and associates with bikies. She alleges further that P is at risk in the care of the father by reference to Ms C’s mental health issues and that those issues are themselves reflected in the circumstances whereby Ms C’s children live with their father, and there are conditions associated with her spending time with them.
13Both parties deny that they, or their partners, pose any risk to P.
Care arrangements for P to date, and the changing positions of the parties
14As already noted, proceedings between the parties first commenced in [late] 2014, when P was 10 weeks old. The parties had very recently separated in circumstances where each alleged that the other had perpetrated family violence.
15Interim orders were made for P to live with the mother and spend supervised time with the father. Orders were also made for the father to undergo drug testing. The proceedings progressed in the usual manner, and were listed for trial to commence on 30 August 2016. The trial did not proceed as scheduled. Both the father and Mr G had only recently been charged with drug offences. Mr G was subsequently convicted as already noted. The drug charges against the father were subsequently dismissed, but he was convicted of the other offences referred to above.
16The proceedings went to trial before a magistrate in February 2017, with judgment delivered on 3 March 2017. The parties had agreed that orders should be made for equal shared parental responsibility, and for P to live with the mother. Orders were made by consent in those terms. Orders were also made progressing P’s time with the father such that from the commencement of 2018 they would spend time together in a fortnightly cycle from 10.00 am to 6.00 pm on Wednesday in the first week, and from 10.00 am Friday to 6.00 pm Sunday, and from 10.00 am Thursday to 6.00 pm Friday in the second week. Orders were made in relation to special occasions, communication, telephone communication and the like. The father had initially sought an injunction restraining the mother from bringing P into contact with Mr G, but that was not pursued at trial.
17There was a short hiatus before the parties were back in court. The mother filed a contravention application on 5 February 2018, and commenced substantive proceedings on 21 March 2018 related to her desire to travel with P to [Country A]. The father responded, seeking to prevent the proposed travel. Orders were made by consent on 4 May 2018 facilitating the travel, on certain conditions, and the application and response were otherwise dismissed.
18The father then filed a contravention application on 16 October 2018, and sought to file a Notice of Child Abuse or Family Violence (or risk). The mother then commenced the present proceedings by filing her application on 18 February 2019. She sought sole parental responsibility, and various specific issues orders. She did not seek to alter in any way the then current orders for P to spend time with the father.
19In his response filed on 12 July 2019, the father sought to move to an arrangement whereby P would live equally with each party, in a week about arrangement. Notwithstanding that proposal, he also sought an order that the mother enrol in and attend a domestic violence and anger management program.
20The parties subsequently each filed contravention applications, applications for recovery orders, and applications to enforce existing orders. Orders were made on 9 August 2019 for P to spend time with the father on a two week cycle from the completion of school on Friday until 6.00 pm on Sunday in week one, and from 10.00 am Wednesday to the completion of school on Friday in the following week. An order was made the same day appointing an Independent Children’s Lawyer (“ICL”).
21On 28 October 2019, both parties were found to have contravened orders without reasonable cause. No penalty was imposed, and the various contravention applications were either dismissed or discontinued. Orders were made to progress the substantive proceedings towards trial, and an order was made by consent appointing Mr T as the SEW.
22Matters escalated still further, and significantly, upon the involvement of Mr T.
The engagement of the parties and P with Mr T
23Mr T was provided with numerous court documents, court orders, and subpoenaed documents. He was not provided with a copy of the judgment published following the first trial. He made arrangements to meet with the parties, P, and the paternal grandmother (with whom the father was then living) on 27 January 2020. For reasons which he could not explain at trial, he did not initially arrange to meet with Mr G, to whom the mother was by that stage married.
24In his report, Mr T said that he decided to interview the paternal grandmother “as she filed an affidavit asserting that P had made disclosures to her, as well as to [the father] regarding maltreatment in [the mother’s] care”, and that he therefore “considered it helpful to speak with her”.
25Mr T went on to say in his report that he “decided to interview Mr G, because of his significant presence and influence in [P’s] life”, considering it “helpful to speak with him”. In fact, as will be seen, he agreed to interview Mr G only at the latter’s insistence, and after the scheduled interviews with the parties and the paternal grandmother had been completed and recommendations adverse to the mother made.
26Mr T met first with the father, at 11.00 am on 27 January 2020. He noted that the father denied ever physically assaulting, emotionally or verbally abusing the mother, while admitting becoming angry with her. He noted also that the father had made some 10 notifications over the years to the Department of Communities (“the Department”); Mr T regarded certain aspects of the Department’s response as inadequate, particularly as P was not interviewed.
27During their interview, the father told Mr T that he had concerns about members of the mother’s family having mental health issues and behaving violently. He restated what Mr T described as “serious and concerning allegations, relating to [the mother] allegedly physically assaulting [P], and [P] witnessing and being caused to feel frightened and anxious by witnessing domestic violence occurring between [the mother] and [Mr G]”.
28The father also told Mr T that P “never manifests aggression towards him, nor swears in his household”. He showed Mr T a video the mother had taken of P while on holiday in [Country B], which showed P behaving aggressively towards the mother and swearing at her. The mother had sent that video to the father in the context of raising concerns that P might suffer from ADHD and require diagnosis and possible treatment. The father was recorded by Mr T as suggesting that P behaving in that manner while in the care of the mother, but not in his care, was “plausibly symptomatic of abuse [P] had experienced within the maternal context, which [the father] repeatedly referenced in supporting his recommendation for the child to spend more time in his care”.
29Mr T then met with P, who had been brought to the meeting by the father, alone. His report records that P “initially didn’t make any disclosures… about being physically abused by his mother”. P acknowledged that the mother and Mr G argue, but “denoted these quarrels not being substantially disturbing to him”. P confirmed that he was spending time with both parents, and “seemed pleased about this”, while noting that if he told the mother that he wanted week about time with the father, the mother would be “sad”. When asked how the mother and Mr G got on, he responded that they get along well. When asked whether they ever argued, he said that they get angry at each other, and that he had seen them “get really mad”. He was not able to provide details, and said that he got scared to a level he rated at “only 1/10, which she (sic) said didn’t last long”.
30Towards the end of the interview, with the video in mind, Mr T asked P “whether he had ever sworn or felt angry towards either parent”. P said that he had not.
31That prompted Mr T to show P the video in which he behaved aggressively towards his mother and swore at her. In his report, Mr T said that his intention “was to see whether it triggered any recollection of this episode, so that [he] could establish what had informed this apparent outburst of aggression towards [the] mother”.
32It is not clear to me why Mr T considered it appropriate to, in effect, cross-examine a five-year-old who had self-evidently been exposed to significant conflict between his parents for the whole of his life in that manner, confronting the child with a video which demonstrated not only bad behaviour on his part but also that he had just lied.
33P’s reaction was frankly predictable. Mr T’s account of what happened next bears repetition verbatim:
“[P] appeared shocked and alarmed when I showed him the video clip. He began crying and appeared to be trembling with fear.
I consoled him, and when he calmed, asked him what his tears were about. He responded while sobbing, that he was frightened of his mother. I asked him why and he told me:
I’m scared of Mum… she slaps me in the face every time! Mum gets angry at me. I don’t know why… I was scared when I was swearing at Mum in the video.
The child’s level of fear and anxiety at this time was difficult to correctly interpret. I considered it most plausibly symptomatic of the child making a truthful disclosure of being maltreated by [the mother], consistent with the father’s description of [her], and claims to me that the child has made similar disclosures to him and his mother about maltreatment from [her]”.
34And later:
“I still don’t understand why viewing this video appeared to so substantially change the child’s views. Initially, I thought this was because seeing himself swearing at his mother, might have reminded him of abuse he has experienced in her care, as the father alleges.
At the end of my interview with [P], the child was still emotionally distressed, which [the father] appeared to notice. I thought it was appropriate to bring the father and child back into my consulting room, where I explained to [the father], with [P] present, what the child had said about being fearful of his mother on account of [her] allegedly smacking the child in the face”.
35At another part of his report, Mr T described P as “crying and cowering in a foetal position” after being shown the video. He went on to say that he asked P “if he stayed with his father until his mother understood that she was not permitted to smack him, what that would be like” and that P responded that would be “very good”.
36Mr T then spoke with the father alone. Knowing that pursuant to orders then in force the father was due to return P to the mother’s care on 29 January 2020, he “recommended to [the father] that he retain P with him until the Court could cross-examine [his] findings, and determine appropriate living and spend time arrangements for the child”. He said in his report that he made that recommendation in consultation with the ICL.
37Mr T made that recommendation to the father at a time when he had not yet met the mother. He had an appointment scheduled with the mother for that same afternoon.
38Having already made the recommendation, Mr T next met with the paternal grandmother. His report discloses little about that interview, and at trial he told me that contrary to his usual practice he had not retained notes of the interviews in this case. He explained that the notes had been accidentally lost rather than intentionally destroyed.
39Mr T’s report states simply that the paternal grandmother confirmed the father’s perception that P complains of being exposed to violence occurring between the mother and Mr G.
40The mother then attended her appointment at 2.00 pm. Mr T informed her of the recommendation he had made to the father. In his report, he said that she “seemed distraught about this”.
41The mother denied the allegation that she was violent towards P, and described herself as anxious because she “feels like she is losing P”, fearing that the father was seeking to take him away from her. She explained that her anxiety about P spending time with the father was based on the father’s history of violence towards her. She said that P was exhausted when he returned to her care after spending time with the father, and that he tells her that he loves her and does not love the father. She said that P seemed scared leaving her care. She felt that the father was “taking motherhood from [her]”.
42The mother asserted that the father had engaged in drug use during their relationship, which made him aggressive. She described her relationship with Mr G in positive terms, while acknowledging that they sometimes argued. She said that she disciplined P by verbally correcting him, and denied ever smacking him in the face as alleged.
43The father sent a text message to Mr T on the evening of 27 January 2020, seeking to confirm his recommendation that he not permit telephone communication between P and the mother. Mr T provided that confirmation.
44Mr G then telephoned Mr T, before sending him a lengthy email on 30 January 2020. He queried, among other things, why Mr T had observed P (albeit briefly) with the father, but had declined to observe him with the mother. He directly queried why he had not been interviewed given his involvement in P’s life for some years. He set out and supported allegations by the mother as to violence on the part of the father, and sought to rebut a number of the allegations made by the father. He expressed the view that Mr T had made “a rash decisions (sic)” based on lies from the father, and had failed to “[gather] the full information before making a decision” as he would have expected from “a professional in [his] line of work”. He pressed for a meeting with Mr T.
45Mr T met with Mr G on 31 January 2020. During that meeting, Mr G informed Mr T that the father had facilitated P spending time with the mother (albeit in the father’s presence and under his “supervision”) the previous day. He showed Mr T a video taken by the mother on that occasion in which, in Mr T’s words, “the child is telling her that he loves her, and appears overjoyed to be with her”.
46Mr G told Mr T that P was “pleading with [the mother] to let him come home, and that the child was inconsolable when the father would not allow [that]”. He said that incited the father to threaten the mother that he would not allow any further time between them, if she did not let P stay in his care.
47Mr T was impressed with Mr G’s “pragmatic view of P’s welfare and safety”. He was clearly unimpressed with the fact that the father had facilitated P spending time with the mother, albeit under his own supervision. He expressed the view that the father’s actions “undermine[d] and [were] inconsistent with the concerns he has raised about the child being fearful in his mother’s care”.
48Mr T telephoned the father, who acknowledged that the visits had taken place. Mr T described the father as then having “rationalised” what he had done, and asserting that P appeared happy to see the mother because the father was there to keep him safe. The father acknowledged that on the second visit P had been “pleading with” the mother to return to her.
49Again, what happened next bears repetition verbatim of Mr T’s report:
“[The father] organising two contact visits between [P] and the mother and [Mr G], after recommending only supervised contact should occur due to their abuse of the child, most plausibly portrays him having influenced [P] to make false allegations against [the mother].
The child’s evident expressions of love for [the mother], and relief about being back in her care, evident in the video taken at this contact visit that [the father] organised, are inconsistent with the expressions of fear towards his mother that [P] made during my interview with him.
The inconsistency I am referring to, manifests the father not being genuinely concerned about the child’s safety or wellbeing in the mother’s presence or care. It seems more plausible to me, that [the father] is inappropriately failing to adequately promote the relationship between [P] and [the mother], than the mother posing any demonstrable risk to [P].
Consequently, I recommended to [the father] that he return [P] to [the mother’s] care on Friday, 31 January 2020. [The father] initially agreed that he would do this, however subsequently texted me asserting that he would not be returning the child”.
50In fact, as he conceded at trial, Mr T received an email on 2 February 2020 in which the father said that he sought the opportunity to explain his “side of the events that occurred this week”. The father explained that it was the mother who had initiated discussions about spending time with P, and that she was distressed when doing so, and pleaded to see him. The father agreed to her request, on his account believing that there would be no risk to P as he would be there to supervise. He then recounted various details of the two visits, asserting that the mother was whispering in P’s ear and seeking to influence him.
51The father’s email went on to say:
“What is concerning to me is that you clearly indicated the seriousness of this matter earlier this week and that you believe [P] is at risk in [the mother’s] care and that I don’t facilitate a phone call to [her] nor return him to [her] on the Wednesday as ordered by the courts. You also appeared concerned about what [P] was telling you about his mother hitting him in the movie she recorded and sent to me. It surprised me that your position on this shifted following you receiving a video recording made by [the mother] – a recording that was made deceptively without my knowledge or consent. I believe [the mother] has either provided a recording to you out of context or edited, or that she has potentially provided a recording to you that was not taken at the time that she alleges it was. I am confused [as] to how this video could have altered your opinion from the significant concerns you expressed to me at the beginning of the week.
Given this, I feel as though receiving some further explanation to this would be useful for my understanding. I am accepting of the recommendations that will be made, however I am concerned that the issues around [P]’s safety at home with [the mother] have not yet been addressed. I trust that you understand my perspective and I know that you appreciate that [P]’s well being is of greatest importance. It is however difficult for me to accept that he is safe to return to [the mother] currently without any plan in place to protect him moving forward”.
52In a further email sent to Mr T on 7 February 2020, the father confirmed his willingness to return [P] to the mother’s care, but said that he would:
“require a reasonable explanation as to why you believe there is no risk to [P] while he is with his Mum. You would have to agree that no parent would hand over their child to the other parent after initially being told that no contact is to happen between the child and his Mum because of the risks. You further confirmed this to be the case after interviewing [the mother] on the Tuesday. You told me by phone on Wednesday not to return [P]. Telling me that you’ve reviewed the decision and to return [P] to his Mother is not a reasonable explanation which would give me the confidence that if [P] has returned he would not be exposed to child abuse. Please provide me with the information I’ve requested and I will return [P]”.
53At trial, Mr T acknowledged that while he could not be certain, he likely did not reply to the father’s emails. He proffered no explanation.
54Mr T had completed his report by this point. While the report itself is dated 28 January 2020, that is clearly inaccurate given that there is reference in the report to events occurring no earlier than 31 January 2020. Mr T’s affidavit annexing the report was affirmed on 5 February 2020.
55In the report, Mr T variously said:
(a)that he found the father’s depiction of the mother being repeatedly aggressive towards him implausible;
(b)that Mr G had told him that he had been present at the home on occasions when the father had physically assaulted the mother, and that while he had not witnessed the actual assaults he “provided a very credible account of what happened”;
(c)that he considered P to be “at risk of exposure to violence, and to be caused chronic anxiety and periods of terror, while having unrestricted contact with his father”, based on his impression that the impacts on P of the present living arrangements were “the product of a controlling and coercive attitude [the father] manifests towards [the mother]” to which he was exposed;
(d)that in contrast, it “appear[ed] the child is safe and content in his mother’s care”;
(e)that the parties were not perceived by him to be equally responsible for their arguments, recognising “the substantially greater physical strength and socially engendered sense of entitlement that the father has in comparison with the mother, rendering him capable of terrorising family members, to an extent they could not reciprocate towards him”;
(f)that the father “manifests many typical signs of perpetrators of violence who pose a risk of this recurring”, and was unreasonable in his attitude towards the mother;
(g)that he found the father to be “coercive in determining contact arrangements for the child to spend time with [the mother]”, presumably referring to the two occasions on which the father facilitated P spending time with the mother on the condition that he personally supervise that time, in the immediate aftermath of Mr T having directed him not to return P to the mother’s care so as to keep him safe;
(h)that the father posed “a high risk of ongoing aggression”;
(i)that P was at risk spending time unsupervised with the father;
(j)that the father seemed “more intent on coercing [the mother] than promoting P’s relationship and bond with her”; and
(k)that changing the long standing arrangements for P’s time with the father by introducing supervision would restrain the father from denigrating the mother to P, and enhance P’s wellbeing.
56Mr T concluded his written report by saying that he “trust[ed] this assessment and recommendations will assist the parties to agree on arrangements to promote the wellbeing of P”. If that was a considered statement, and not simply a rote conclusion in a template used for court reports, it was naïve at best.
57It is, to put it as neutrally as possible, surprising that Mr T would confront a five-year-old child in the manner in which he did, showing the child a video demonstrating that he had just been caught out in a lie. Mr T’s reference in his report to having “asked P’s permission” and obtained his “consent” before showing him the video does not bear comment. His implied surprise at P’s distressed reaction to the video is perplexing. His notation in his report of the obvious, that there are “myriad plausible explanations for [P’s reaction], including that no child likes to be caught out lying, or swearing at a parent” might reasonably be construed as post-event rationalisation of his reversal of the clear recommendation he made to the father immediately after witnessing P’s reaction.
58That Mr T would recommend to the father that he retain P contrary to court orders, on the basis that P would be at risk if returned to the mother, when he had not yet interviewed the mother, is remarkable. That he did so when his interview with the mother was only a few hours away, and the child was not due to be returned to the mother’s care until two days later, is even more remarkable.
59It is understandable that Mr T’s subsequent interview with Mr G, and his viewing of the video showing P embracing his mother, would cause him to doubt the recommendation already made. That does not, however, render his subsequent actions any more appropriate.
60It is understandable, and was entirely predictable, that the father would be confused by Mr T’s about-face, and would question it. Mr T had firmly recommended to the father that he retain P until the court could determine the appropriate path forward; days later, and without the matter having returned to court, he recommended that the father return P to the mother immediately. He was then critical of the father for not acting on his recommendation. He maintained that criticism at trial, including after an exchange in which I asked him to “put himself in [the father’s] shoes”.
61Mr T’s criticisms expressed and implied of the father for not simply accepting his reversed recommendation, and returning P to the mother without question, were entirely unfair.
62Finally, I note that in response to a term of reference inviting him to advise whether any concerns he might hold about P, the parents or any other significant person could be addressed by therapy, counselling or other intervention, Mr T recommended that the father participate in a 26 session program to enhance his understanding of family violence and its impact, and to “particularly develop more responsible, respectful and ways of relating to other family members” (sic). He did not address the question of whether family therapy might be indicated, or whether any concerns about the mother might be addressed by therapeutic intervention.
The aftermath of Mr T’s report
63The father did not voluntarily return P to the care of the mother after Mr T reversed his initial recommendation, against the background of Mr T not providing the explanation for that reversal which he had requested.
64The matter was relisted on an urgent basis at the request of the ICL, and came before the docket magistrate on 14 February 2020. No orders were made other than to schedule a Readiness Hearing, and P was returned to the care of the mother.
65There were then further issues between the parties and the father filed an Application in a Case on 30 March 2020 seeking to enforce the existing orders, in circumstances where he alleged that the mother had failed to comply with them, and had not responded to his efforts to communicate. Orders were made by the magistrate on 31 March 2020 requiring the mother to deliver up P to spend time with the father in compliance with the existing orders.
66The father filed another Application in a Case on 1 April 2020 seeking a recovery order, asserting that the mother was again refusing to comply with existing orders, this time on the basis that she was home- schooling P in response to the COVID-19 pandemic. The mother filed a response on 14 April 2020, seeking orders to suspend P’s time with the father during school term, on the basis that P spend time with the father only in school holidays in accordance with the existing orders. Those matters were dealt with by the magistrate on 15 April 2020 when orders were again made requiring compliance with the existing interim orders.
67The mother filed an Application in a Case on 28 April 2020 seeking a recovery order, “full custody”, and that P be “immediately removed from the father’s care and the visits to be stopped”. She alleged that the father had refused to return P on 27 April 2020 as scheduled. The father filed a response to that application on 29 April 2020, seeking orders that the mother and Mr G attend a domestic violence program and counselling, and that during that period the mother spend supervised time only with P.
68Those matters came before the magistrate on 1 May 2020. An order was made for the father to return P to the care of the mother by 5.00 pm that day, and his time with P was suspended until 15 May 2020 on the basis that it would then resume in accordance with the existing orders.
69The mother then filed a Minute of proposed orders for the purposes of trial on 4 May 2020. In that Minute she sought sole parental responsibility and that P live with her. She sought a raft of orders in relation to child support related issues, which are not relevant for present purposes. She sought an order that the father complete the 26 step program recommended by Mr T, and that Mr G assist with handovers and be responsible for P if she was not available.
70In that Minute, she proposed that P spend time with the father every third week from after school Friday until before school on the Monday. She proposed that time be suspended during school holidays, but that:
(a)if she chose not to travel overseas during July school holidays, P spend the second week of those holidays with the father;
(b)in any event, P spend the first week of the holidays at the end of term three each year with the father;
(c)P spend time with the father from 2.00 pm on Christmas Day to 27 December in alternating years, and from 18 December to 2.00 pm on Christmas Day in intervening years;
(d)that P otherwise spend the last week of the summer school holidays with the father; and
(e)that P spend the second week of the school holidays at the end of term one each year with the father, commencing in 2021.
71She otherwise sought a variety of detailed orders in relation to special occasions and the like.
72Having made those proposals, on 8 September 2020 the mother filed an amended Minute proposing that she have sole parental responsibility, and that P live exclusively with her and spend no time with the father, nor communicate with him.
73On 18 September 2020 the father filed his Minute proposing that the mother have “regular weekly supervised contact” with P until she and Mr G have completed a domestic violence and anger management program, with a positive report, and that the arrangements for P thereafter move to living for equal time with each parent, week about.
The proposals of the parties
74In addition to the central orders just referred to, the mother sought ancillary orders to enable her to travel interstate and overseas with P, and injunctions restraining the father and Ms C from approaching within 50 metres of P, his home or his school, and from abusing, harassing, assaulting, contacting or attempting to contact him in any way.
75In addition to the central orders just referred to, the father sought various specific issues orders in relation to telephone communication, birthdays and other special occasions, and travel during holidays.
76Prior to the trial, the ICL filed a Minute of the orders which, subject to the testing of evidence at trial, he would propose to be in P’s best interests. That Minute proposed that the parties have equal shared parental responsibility, and that P live with the mother while spending alternate weekends, and one overnight in intervening weeks, with the father.
77By the conclusion of the trial the ICL submitted that an order for the mother to have sole parental responsibility would be in P’s best interests, and that the court should consider extending the duration of P’s alternate weekend time with the father and eliminating provision for time in the intervening week, to minimise opportunities for the parties to come into conflict. He proposed various orders in relation to school holidays and the like.
The consent orders
78After the evidence at trial had concluded, and in particular after questions as to therapeutic options had been canvassed during the course of the cross‑examination of Mr T, the parties took the opportunity to confer with the assistance of the ICL.
79As a result, orders were made by consent requiring each party to attend individual counselling with the counsellor of their choice to address issues related to family violence. Further orders were made for the parties to engage with a family therapist to be nominated by the ICL, for reportable family therapy with the goals of facilitating communication about P’s needs, reducing conflict regarding parenting time schedules, addressing emotional and behavioural problems of P, and to facilitate the relationship between P and both parents.
80Still further orders were made by consent requiring each party to keep the other informed of their address and contact details, restraining them from denigrating each other or discussing legal proceedings within P’s hearing, and as to the sharing of medical and educational information.
81Somewhat surprisingly, having consented to those orders the mother then maintained in her closing submissions that orders should be made whereby P would not spend time or communicate with the father. When I queried that, she somewhat unconvincingly said that she was prepared to engage in family therapy because she “just want[ed] to explore more things”, as she “love[s] study and so [she] want[s] to see how it is there and see if [she] can learn something new”.
82Notwithstanding the orders for therapy and family therapy, both parties and the ICL confirmed that they otherwise sought final rather than interim orders.
The law – the parenting case
83The parties were not married. The proceedings fall to be determined pursuant to the Family Court Act 1997 (WA) (“the Act”). The Court must be guided by the objects of Part 5 of the Act and the principles underlying them.
84Parental responsibility is defined in s 68 as meaning all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. Pursuant to s 69, subject to any order of a court, each of the parents of a child who is not 18 has parental responsibility for that child.
85Section 70A requires the Court, when making a parenting order, to apply a presumption that it is in the best interests of the child for his parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent of the child, or another relevant adult, has engaged in abuse of the child or family violence. In this case, bearing in mind that both parties are self-represented, it is helpful to record the statutory definition of “family violence”:
9A. Meaning of family violence etc. — FLA s. 4AB
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to) —
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f)intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
86If the presumption in s 70A applies, it may still be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility.
87If an order for equal shared parental responsibility is to be made, I am required to consider whether P spending equal time with each of his parents would be in his best interests, and whether such an arrangement would be reasonably practicable. If so, I am then required to consider making such an order.
88Again, against the background of an order for equal shared parental responsibility being made, if I do not make an order for P to spend equal time with each parent, I am required to consider whether spending substantial and significant time (as that term is defined in the Act) with each parent would be in his best interests and reasonably practicable. If so, I am required to consider making such an order.
89In determining what is in a child’s best interests, the Court must consider the matters set out in s 66C. While those matters are divided in the legislation into primary and additional considerations, the primary considerations do not necessarily outweigh any combination of the additional considerations. The issues that are joined between the parties will dictate which s 66C factors are relevant.
90The requirement to consider each matter set out in s 66C does not mean that each factor must be expressly discussed in a judgment, where the factor in question has no sufficient relevance to displace the determinative significance of factors specifically discussed.[1]
[1] Banks & Banks (2015) FLC 93-637.
91Ultimately, the making of a parenting order involves the exercise of judicial discretion. The primary considerations set out in the legislation are “matters to be borne in mind as consistent with the objects” of Part 5 of the Act. The additional considerations set out in the legislation:
“… require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgments in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of the child”.[2]
The evidence at trial
[2] Bondelmonte & Bondelmonte (2016) 259 CLR 662, 673 at [32].
92The mother relied on the following affidavits:
(a)her trial affidavit filed on 2 May 2020;
(b)her updating affidavit filed on 20 September 2020;
(c)affidavit of her husband Mr G filed on 2 May 2020;
(d)affidavit of [Ms X] filed on 2 May 2020;
(e)affidavit of [Ms Y] filed on 2 May 2020; and
(f)affidavit of [Ms Z] filed on 7 September 2020.
93Neither the father nor the ICL required Ms X, Ms Y or Ms Z to present for cross-examination. Their evidence was accordingly unchallenged, but with no disrespect to them was of limited assistance in determining the matters in issue. Mr G presented for cross-examination as required.
94The father relied on the following affidavits:
(a)his trial affidavit filed 30 July 2020;
(b)his updating affidavit presented for filing on 25 September 2020, and accepted on the first day of trial;
(c)affidavit of his mother filed 30 July 2020; and
(d)affidavit of his fiancée Ms C handed up in court on the second day of trial.
95His mother was required to present for cross–examination, and did so.
96At the time of the Status Hearing, the father had not filed any affidavit of Ms C, and did not indicate any intention to call her as a witness. He might reasonably have been expected to do so, given not only the issues raised by the mother but also because they live together and on his proposals Ms C would be actively involved in P’s care. Accordingly, the ICL sought and was granted leave to issue a subpoena requiring the attendance of Ms C to give evidence. In those circumstances I indicated that I would permit the ICL to ask questions of her in the nature of cross-examination.
97Ms C attended the hearing and was available to give evidence from the outset of the trial. It was not until after the father’s case had closed, and the ICL had begun to cross-examine Ms C, that his questions made it apparent to me that he and the parties had an affidavit sworn by Ms C, but I did not. After some confusion, the affidavit was tendered by consent and affirmed by Ms C, and her evidence was completed.
98The mother was not an overly impressive witness. While I do not conclude that she was intentionally dishonest or evasive, her evidence at best was vague. She not infrequently returned to a statement of the central premise of her case as presented – that it is not in P’s best interests to spend any time with the father or communicate with him. Her answers to questions seemed, at times, unsubtly tailored to the furtherance of that central premise. It also became tolerably clear that from her perspective matters relevant to P fundamentally changed when she became aware of the father’s new relationship, and that her proposed solution to the issues faced by the parties represents the only option she can think of to bring the long-standing conflict and court proceedings to an end.
99Mr G gave his evidence in a direct, sometimes blunt, manner. While he was initially reluctant to be involved in the proceedings, his explanation as to why he has now become involved rang true. While he could not resist taking the occasional opportunity to seek to “score points” at the expense of the father, I nevertheless formed the view that his evidence was largely truthful. There were clear inconsistencies in his evidence as to just what altercations between the parties he had actually witnessed. He was clearly unimpressed by some of the behaviour of both parties.
100The father gave his evidence in a manner that had much in common with the mother’s presentation. In contrast to her evidence, however, there were occasions when he was clearly evasive, or at the very least less than forthcoming. One simple example was his denial that he “associates with bikies”, which was on further questioning replaced with acknowledgements that his best friend is a bikie, his first cousin with whom he has a good relationship was formerly a bikie, and that his own very recent birthday party was held at a bikie clubhouse. He professed a misunderstanding of what was meant by “associating with” bikies; it is sufficient to say that I found his explanation unconvincing.
101One striking example of the difficulties associated with the evidence of both parties emerged during the mother’s cross-examination of the father. She asked him a non-specific question about an incident not mentioned in any of the affidavit evidence where apparently P suffered a cut to his scalp which required stitches. The father’s response was to complain that the incident was an example of the mother not keeping him informed, and failing to respond to his queries – the implication being that P had arrived to spend time with the father having suffered the injury, and with stitches in his head. The mother then put questions contending that P had suffered the injury while in the father’s care. As the exchange between the parties degenerated, I intervened and asked each of them questions. The outcome was that both contended that P had suffered the injury while not in their care, and that he had received stitches while not in their care. When I queried just how it was that a five-year-old came to have stitches in his head without either parent being involved in the process, the father then suggested that as he “is not a nurse” perhaps in fact P did not have stitches, but it just appeared that he did.
102Suffice it to say that overall neither party was an impressive witness.
103The father’s mother gave evidence in a fairly straightforward manner. She openly acknowledged that she currently has no relationship with the mother, and clearly attributes blame to the mother for that. She is also clearly supportive of the father, and of his relationship both with P and with Ms C. That said, her outraged reaction when the mother suggested to her that P had suffered the scalp injury while in the care of the father, and that the mother had not been informed, appeared entirely genuine. When I explained to her the evidence that had been given by the father on the subject she was understandably bemused, as she had no awareness of P ever having a scalp injury requiring stitches.
104In an exchange with me she readily agreed that both parties were “hopeless” at shielding P from adult information.
105I formed the impression that her evidence was truthful.
106Ms C also gave her evidence in an open and fairly straightforward manner, albeit she clearly has strong views about the mother and is equally strong in her support of the father. She understandably digressed at times given the nature of some of the questions put to her about her own mental health issues, and difficulties associated with her own efforts to spend time with her children in the context of contested proceedings in this court. She was very open about her mental health issues and attempted suicide, and was clearly deeply affected by the very traumatic experiences of her disabled daughter, who was the subject of violent and abhorrent bullying at school. I accept that in that context Ms C gave her evidence in a truthful manner.
107Mr T struggled to explain in his oral evidence at trial the sequence of events, and reversal of recommendation, contained in his report and summarised earlier in these reasons. He also acknowledged, albeit with some apparent initial reluctance, that there were matters which should have been covered in his report and were not; by way of one example only, he readily agreed with the proposition put by the ICL that family therapy was indicated, not having made that suggestion himself in his report when a specific terms of reference was directed towards it.
108Regrettably, the cumulative effects of:
(a)the matters already recounted in relation to the process adopted by Mr T in his dealings with the parties and P;
(b)the making (before he had even met the mother, and when he was due to meet with her in only a few hours) of a recommendation which would have the effect of altering immediately a long-standing arrangement whereby P lived primarily with her;
(c)the making of that “decision in consultation with the ICL” (as he described it at trial) before he had provided a report so that issue could be determined by the court;
(d)the immediate reversal of that recommendation following his meeting with Mr G;
(e)the further recommendation that the father’s time with P should be supervised when only days earlier he had recommended that the father retain P in his exclusive care to protect him from risk in the care of the mother; and
(f)the unsatisfactory nature of his oral evidence at trial
lead me to conclude that I can place no weight on the opinions Mr T expressed. To the extent that any conclusions I draw independently are consistent with those opinions, that is coincidental.
The parties as self-represented litigants
109Both parties were self-represented at trial.
110At the commencement of the trial I explained to them various matters so as to ensure that they properly understood the process.
111I explained the steps that I was required to take to ensure procedural fairness. I informed the parties of the manner in which the trial was to proceed, the order in which they would give their evidence and make submissions, and their right to cross-examine.
112I explained to the parties the importance of cross-examination and the likelihood that evidence that was not challenged in cross-examination would be accepted.
113I explained to the parties that they would be permitted to give updating evidence-in-chief as to facts arising after the date on which their trial affidavits were sworn, and I explained the nature and purpose of re‑examination.
114I set out the principles to which the court is required to give effect in conducting child-related proceedings. In particular, I explained the principle requiring me to actively direct, control and manage the conduct of the trial. I had previously advised the parties at the status hearing that the trial would be run in a manner that would ensure that they had all the time properly needed to explore matters genuinely in issue and, as far as possible, to ensure that the best information available was before the court. I made it clear to both parties that they would not be permitted to spend time on matters that were irrelevant to the issues.
115I explained that in relation to parenting proceedings, the formal rules of evidence did not apply other than in certain limited circumstances.
116Both parties had received copies of the handbook for self-represented litigants produced by the court and had made use of the template Papers for the Judge provided on the court’s website. By that process, and by directions I gave to them at trial, they had the relevant law drawn to their attention.
117I explained to the parties my obligation to attempt to clarify the substance of their submissions so as to ensure that I properly understood their cases as they wished them to be put. I emphasised the need to focus both in evidence and in submissions on P’s best interests as the paramount consideration. I explained that an exploration of past events would only be useful to the extent that it might inform decision-making for the future, but that the parties should not hesitate to explore past events if they considered them to be relevant to the decisions to be made.
118Both parties had clearly gone to some effort to prepare both their submissions and their cross-examination for trial. Both conducted themselves entirely appropriately throughout the trial, and were courteous to each other during cross-examination. Neither hesitated to ask me questions when they considered it appropriate. While English is the mother’s second language, her conversational English is good and she struggled only occasionally with some legal terminology. She confirmed her understanding of matters which had caused her some confusion after I explained them to her. The father similarly ran into some difficulties with terminology and the like; again, that was addressed by explanations where necessary.
119While understandably they struggled at times, I am satisfied that the trial proceeded in a manner which afforded procedural fairness to both parties.
The statutory presumption of equal shared parental responsibility
120On each party’s case, there has been family violence between them. The conflicts in their evidence as to the nature and extent of that violence, and the apportionment of responsibility for it, do not affect the ready conclusion that the statutory presumption does not apply in this case.
121Even were that not so, for reasons which will become apparent I conclude that an order for equal shared parental responsibility is not in P’s best interests. I note in any event that the mother did not propose such an order, and that by the conclusion of the trial the father acknowledged that such an order would be inappropriate.
The primary considerations
122Notwithstanding suggestions to the contrary in his documents and his oral evidence, in his closing submissions the father readily acknowledged that P loves both his parents unconditionally. He said that he would always encourage his relationship with the mother. He acknowledged that P’s relationship with the mother is important and meaningful to him, and to his benefit. In circumstances where the parties separated so early in P’s life, and the mother has been P’s primary carer throughout, those were appropriate and sensible concessions.
123The mother stopped short of making willing concessions about P’s relationship with the father. When I asked whether she accepted that P loves the father, the following exchange occurred:
[His Honour]: Do you accept that [P] loves his father?
[Mother]: At the moment it’s really hard to say that he does.
[His Honour]: Do you accept that he, even if you find it hard to say that he does now, do you accept that he did?
[Mother]: He used to. Yes.
[His Honour]: And when did you say that stopped?
[Mother]: It stopped this year, January or February. February.
[His Honour]: So, given that he loved his Dad up until eight, seven eight months ago on your case, why is the answer to the problems of the last seven or eight months to give up on his relationship with his Dad?
[Mother]: I can see that he is constantly repeating the same things that he has been doing since the start of the um since [P’s] birth, so he’s constantly doing the same things and we just keep ending up here and it’s not getting better and now the case even got worse because he’s got a new girlfriend with all this past history which it don’t do any good for [P].
124That response, and the mother’s earlier agreement not only to participate in family therapy but as to the stated goals of that therapy, reinforce my conclusion derived from the totality of the evidence that P’s relationship with the father is meaningful to him, and that it is to P’s benefit that it be maintained.
125The second of the legislated primary considerations, the need to protect P from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence is somewhat more problematic.
126The evidence does not suggest that P is at any risk of being subjected to abuse or neglect in the care of either party. I reject the suggestion of the mother that P is at any risk of abuse or neglect if left temporarily by the father in the care of Ms C. While Ms C acknowledged that she continues with mental health struggles, it is also clear that she is taking appropriate steps to manage them and that she has the support of the father and his family in doing so. There is no evidence to suggest that either party, or for that matter their partners or extended family, would abuse or neglect P.
127Similarly, the evidence does not support any conclusion that P is at risk of physical harm from either party, or their partners or extended family. I accept the evidence of the mother that she does not strike P as alleged.
128The evidence does, however, suggest that P is at some risk of psychological harm from being exposed to family violence. The father’s blanket denials of ever having acted in a violent fashion are contradicted by the objective evidence. The mother’s denial of any suggestion that conflict between her and her husband escalated to conduct meeting the statutory definition of family violence is also contradicted by the objective evidence, and indeed by P’s account to Mr T prior to their interview unravelling in the manner earlier described.
129The orders made by consent in relation to both individual therapy and family therapy represent, in my view, an appropriate response to address that risk.
The additional considerations
130I have considered the relevance to the determination of what parenting orders are in P’s best interests of each of the additional considerations listed in the legislation. I refer below to only those considerations which are relevant.
131The mother suggested that P has expressed the view that he does not wish to spend time with the father. The father suggested that P has expressed the view that he wishes to spend more time with him. Neither party seriously suggested that P’s maturity or level of understanding are such that any weight should be given to any views he may have expressed. The circumstantial inconsistency of the expression of those views set out earlier in these reasons does not require repetition.
132I am satisfied that P has a close relationship with the mother; indeed, that was conceded by the father. I am also satisfied that P has a good relationship with Mr G; again, that was not in dispute.
133I accept the evidence of the father, his mother and Ms C to the effect that P enjoys his time with the father, and has a good relationship with him. I also accept their evidence that when first coming into the father’s care P is unsettled and behaves badly, but that once he settles in he is happy. I am satisfied that P has a close relationship with his father, a good relationship with his paternal grandmother, and a positive albeit developing relationship with Ms C.
134Both parties have endeavoured to appropriately take opportunities to participate in making major long-term decisions about P, and to spend time and communicate with him. Their efforts in that regard have been hampered by the nature of their own relationship, rather than by any lack of interest on the part of either of them.
135The mother has fulfilled her obligations to maintain P. Frankly, I am not satisfied that the father has done so. He did not dispute with any force the mother’s contention that he is significantly in arrears in meeting his child-support obligations. The evidence supports a conclusion that his failure to meet those obligations is long-standing. His explanation that he has not lodged a tax return since 2015 because he has not been working, but has been trying to establish a business, was less than convincing. The question of how he paid for the weekend that he and Ms C recently spent at [a luxury hotel] was not explored in any detail at trial.
136The father’s failure to meet his child-support obligations does him no credit.
137The mother proposes a very significant change in P’s circumstances, in that she proposes that he spend no time with the father or any member of his family, and that he not communicate with the father in any way. Given my findings as to P’s relationships, I conclude that such a profound change in his circumstances would be to his detriment. As earlier noted, the mother’s proposal is also inherently inconsistent with her consent to orders for individual therapy and family therapy.
138Similarly, the father proposes a very significant change in P’s circumstances. He proposes that P live exclusively with him for a period, spending only supervised time with the mother, and that thereafter P live equally with both parents. In short, neither component of the father’s proposal has any attraction as being in P’s best interests. I reject the suggestion that there is any requirement for supervision of the mother’s care of P. P has never lived primarily with the father, in circumstances where the parties separated when he was an infant. There is no sensible prospect of these two parents working together in a manner that would make a “week about” arrangement viable, let alone beneficial for P.
139The only practical difficulties associated with P spending time with each parent are triggered by the inability of the parties to communicate and cooperate. While P’s school is located some distance from the father’s home, the travel is manageable and the perceived difficulties must be considered in the context of the father’s medium to long-term proposal of a “week about” arrangement in any event.
140Both parties have an appropriate capacity to provide for P’s practical needs. They appear to have significant limitations in their capacity to provide for his emotional needs. It is to be hoped that the individual and family therapy ordered by consent will assist in the necessary development of those capacities.
141The legislation requires a consideration of the maturity, sex, lifestyle and background of the child and of either of his parents. More typically, a consideration of the maturity of the parents is not required. In this case, however, both parties have demonstrated such immaturity in their behaviour towards each other as to cause me to ask them during the course of the trial how they realistically expected P to grow up before they did. A singular example in each case will suffice to illustrate the point.
142P has been unable to participate in [sport] while with the father, when it is common ground that he wants to, because the mother will not send his [sporting equipment] with him to the father’s home because she paid for them.
143Ms C has an active presence on social media, which includes what might be euphemistically described as “glamour shots” of her in lingerie, or without clothing and with minimal pixilation to meet social media requirements. Relatively recently, the father thought it appropriate to forward copies of those photographs to the mother, coupled with the suggestion that she show them to Mr G and a crude prediction as to what might happen next.
144P appears also to be somewhat immature for his age. That is demonstrated in some of his behaviour, and I note also that he still uses a dummy to go to sleep at night, and occasionally for comfort. P’s age and level of maturity reinforce the need for him to continue to have the benefit of the better aspects of each party’s parenting both for positive reasons, and as a counterbalance to the less satisfactory characteristics of each.
145Notwithstanding the observations already made, I accept that both parties feel an appropriate level of responsibility towards P and love him. Their difficulties to date relate largely to their inability to prioritise that responsibility over their antipathy towards each other. Again, it is to be hoped that the agreed therapy will assist.
146There is presently a family violence order in place for the protection of the mother from the father. No useful evidence was adduced as to the circumstances in which the order was made, or the evidence admitted in the proceedings which led to it. No additional inference, which would advance findings already made, can be drawn from the existence of the family violence order.
147It would clearly be preferable to make the order least likely to lead to the institution of further proceedings in relation to P. Indeed, the desire to avoid further proceedings appeared to be a significant driver in the mother’s proposal that there be no order for contact or communication between P and the father. For the reasons already set out, I reject that proposal.
148Unless the ordered therapy has the desired effect, it is regrettably likely that these parties will continue to be in dispute about P until he is old enough to take matters into his own hands. In making that observation, I recognise that the process of the parties’ involvement with the SEW in this case exacerbated their conflict, and contributed to the polarising of their positions, in circumstances where their individual reactions to what transpired are understandable. It is to be hoped that their consent to the orders for therapy might indicate some increased self-awareness, and willingness to try to progress for P’s sake, albeit any optimism might be tempered by the mother’s comments during her closing submissions.
149The best the court can do in the circumstances is put in place orders which minimise opportunities for conflict and disputes.
Discussion and conclusion
150I conclude that it is in P’s best interests to continue to live primarily with the mother, and that he should spend substantial and significant time with the father.
151I conclude further that, for all the reasons already outlined, that time should be structured in a way which minimises the need for personal interaction between the parties. It follows that, to the extent possible, handovers should be achieved by the relevant parent delivering P to school at the start of a school day, or collecting him from school at the end of the day.
152I consider it also to be in P’s best interests to minimise the frequency of handovers. I take into account in that regard not only the reduction of opportunities for conflict, but also the father’s evidence as to the length of time which P takes to settle down when coming into his care. In my view, P’s interests are served by spending less frequent, but more extended periods with the father.
153During school term, in my view that is best achieved initially by a pattern where P comes into the care of the father each alternate weekend from after school Thursday until before school Monday. I do not consider it in P’s best interests to have a short visit, overnight or otherwise, in the intervening week.
154The evidence does not support a conclusion that P is yet ready to spend longer blocks of time with the father on a regular basis. That said, once the parties are free of this litigation and have entered into the therapeutic process to which they have agreed, the evidence does support a conclusion that P will be ready to progress to slightly longer periods with the father in due course, albeit that an equal time arrangement would not be in his best interests.
155With that in mind, and in the hope that it will assist the parties to avoid further litigation, I propose to make an order at this stage whereby P’s time with the father during school term will increase to five nights per fortnight, from after school Thursday until the following Tuesday on alternate weekends. In my view, that progression can sensibly be made at the commencement of term three in 2021.
156School holiday time should be more manageable from P’s perspective. I am satisfied that even at this stage he will be best served by spending blocks of a week with each parent during school holidays. Again, the orders can be structured in a way designed to reduce the need for direct handovers between the parents to the extent possible.
157Orders in relation to special occasions broadly in the terms proposed by the father are, in my view, in P’s best interests. The parties did not address in their evidence nor in submissions any issues regarding Christmas, or Orthodox Christmas which on the father’s proposals falls on 7 January each year. The father concedes that P should be in the mother’s care for Orthodox Christmas each year; he proposes that P should be in his care for Christmas day each year. In circumstances where the latter proposal was simply not addressed at trial I do not consider it to be in P’s best interests to make that order, unless the parties agree to it on the delivery of these reasons. Similar observations may be made about the father’s proposals in relation to Easter and Orthodox Easter. I note in that regard that neither party raised issues with the detailed orders made in relation to those special occasions by the magistrate following the 2017 trial.
158The issue of parental responsibility presents some difficulties given the observations already made about the relationship between the parties, and their maturity. On balance, I consider it appropriate for the mother to have sole parental responsibility, as P will live primarily with her, but for specific parameters to be set in relation to the exercise of certain aspects of that responsibility.
Proposed orders
159Subject to any submissions as to form, I propose to make the following orders in addition to the orders already made by consent at the conclusion of the trial:
1.All previous parenting orders be and are hereby discharged.
2.The mother have sole parental responsibility for the child, [P] born in 2014.
3.[P] will spend time with the father during school terms as follows:
(a)from the date of these orders until the end of term two in the 2021 school year, each alternate weekend from after school Thursday until before school Monday; and
(b)from the commencement of term three in the 2021 school year and thereafter, each alternate weekend from after school Thursday until before school Tuesday.
4.[P] will spend time with the father during school holidays, from the date of these orders, as follows:
(a)during the holidays at the end of each of terms one, two and three in each even-numbered year, from after school on the last day of the relevant term for seven nights, returning [P] to the care of the mother at 5.00 pm on the day after the seventh night;
(b)during the holidays at the end of each of terms one, two and three in each odd-numbered year, from 9.00 am on the appropriate day to have the effect of [P] spending seven consecutive nights with the father before being returned by him to school on the morning of the first school day of the following term;
(c)during the end of year school holidays which commence in each even-numbered year, for alternating periods of seven nights commencing on the last day of term, with handovers thereafter to take place at 5.00 pm on the day after the seventh consecutive night spent by [P] with each parent; and
(d)during the end of year school holidays which commence in each odd-numbered year, for alternating periods of seven nights commencing at 5.00 pm on the day after [P] has spent seven consecutive nights in the care of the mother, with the first such night being counted from the end of the last day of term.
5.Notwithstanding the orders contained in paragraphs 3 and 4 above:
(a)in odd-numbered years, [P] will spend time with the father from 10.00 am on Christmas Eve to 2.00 pm on Christmas day;
(b)in even-numbered years, [P] will spend time with the father from 10.00 am to 7.00 pm on Christmas Eve, and from 10.00 am Boxing Day to 6.00 pm on 27 December.
(c)in even-numbered years, [P] will spend time with the father from 10.00 am on Good Friday to 10.00 am Easter Sunday;
(d)in odd-numbered years, [P] will spend time with the father from 10.00 am on Easter Sunday to 10.00 am on the Tuesday after Easter;
(e)in the event that [P] is not in the father’s care on [P]’s birthday or the father’s birthday, [P] spend time with the father from 2.00 pm to 7.00 pm on those days;
(f)in the event that [P] is not in the mother’s care on [P]’s birthday or her birthday, [P] spend time with the mother from 2.00 pm to 7.00 pm on those days;
(g)in the event that [P] is in the father’s care on the weekend of Mother’s Day, he is to return [P] to the care of the mother at 6.00 pm on the day before Mother’s Day, and [P]’s scheduled time with him for the remainder of that weekend is thereafter suspended, with no provision for make-up time;
(h)in the event that [P] is in the mother’s care on the weekend of Father’s Day, the mother is to deliver [P] to the care of the father at 6.00 pm on the day before Father’s Day, and the father is to return [P] to school on the Monday morning after Father’s Day, with no provision for make-up time on the part of the mother; and
(i)the father’s time with [P] will be suspended to enable [P] to spend all day with the mother on each of the following days each year:
(i)Orthodox Christmas Eve (6 January);
(ii)Orthodox Christmas day (7 January);
(iii)Orthodox Easter Saturday; and
(iv)Orthodox Easter Sunday.
6.[P] is to live with the mother at all other times.
7.The father is to have telephone, FaceTime or Skype communication with [P] each Wednesday between 6.30 pm and 7.30 pm, with the mother to initiate the call.
8.The mother is restrained by injunction from doing any of the following without first giving the father 60 days’ notice of her intention to do so, noting that nothing in this order is to be interpreted as inhibiting the discretion of the court to restrain her from taking the step in question if the father’s consent is not forthcoming and he brings the appropriate application:
(a)changing [P]’s school;
(b)changing [P]’s principal place of residence to any place outside the metropolitan area of Perth; and
(c)authorising significant elective medical treatment for [P].
9.Both parties are at liberty to attend all school and sporting and extracurricular activities of [P], but during the currency of any Family Violence Restraining Order for the protection of either of them from the other, must not approach the other party.
10.Both parties must execute any documents necessary to authorise and instruct [P]’s school, and any medical professional from whom he receives treatment, to provide each of them with all reasonable information as they may request.
11.Both parties must keep the other informed as to any medical treatment received by [P] while in their respective care.
12.Each party must keep the other informed of their current residential address and telephone numbers (including landline and mobile telephone) and inform each other within 24 hours of any change.
13.Where handovers pursuant to these orders take place other than at the beginning or end of a school day:
(a)the father must collect [P] from the mother’s home at the commencement of [P]’s time with him; and
(b)the mother must collect [P] from the father’s home at the conclusion of [P]’s time with the father.
14.Each party is restrained by injunction from doing any of the following in the presence of, or within the hearing of [P]:
(a)denigrating the other party;
(b)denigrating the partner of the other party;
(c)denigrating any member of the family of the other party; and
(d)discussing directly or indirectly the proceedings in this court, or any other court proceedings between the parties.
15.All outstanding applications and responses otherwise be and are hereby dismissed.
16.These orders are orders to which section 175 of the Family Court Act 1997 (WA) applies and to the extent that this order is inconsistent with the Family Violence Order made in the case between the parties in the Magistrates Court at [Suburb A], the aforesaid parenting order shall prevail and the Family Violence Order is invalid to the extent of the inconsistency.
17.The Deputy Registrar, Magistrates Court, 150 Terrace Road Perth cause a sealed copy of this order to be forwarded to the Commissioner of Police, the Deputy Registrar, Magistrates Court at Perth and the Chief Executive Officer of the Department of Communities.
18.All subpoena documents be returned to source or destroyed.
19.In 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 O’Brien, at least 28 days, and no later than 42 days, from the date hereof;
(b)all parties must contact the Chambers of Justice O’Brien to arrange the collection of their exhibits; and
(c)in default of compliance with subparagraph (a), all material tendered as an exhibit, save and except for material produced pursuant to subpoena, will be destroyed by the Court without notice to the parties.
20.In the event that, prior to the expiration of 42 days from the date hereof, an appeal or application for leave to appeal out of time is lodged, paragraphs 18 and 19 above do not apply.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
KM
Associate
5 NOVEMBER 2020
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