Tifft (Deceased) and Thwaite and Ors
[2020] FCWA 138
•20 AUGUST 2020
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: TIFFT (Deceased) and THWAITE & ORS [2020] FCWA 138
CORAM: DUNCANSON J
HEARD: 8 JULY 2020
DELIVERED : 20 AUGUST 2020
FILE NO/S: PTW 7635 of 2016
BETWEEN: MS TIFFT (Deceased)
First Applicant
AND
MR TIFFT and MRS TIFFT
Second Applicants
AND
MR P THWAITE
First Respondent
AND
MR S THWAITE and MS ALPORT
Second Respondents
AND
MR ANDERSON and MS ANDERSON
Third Respondents
Catchwords:
CHILDREN - interim parenting orders - where it is in the best interests of the children to spend gradually increasing time with the paternal family
Legislation:
Family Court Act 1997 (WA)
Category: Reportable
Representation:
Counsel:
| First Applicant | : | N/A |
| Second Applicants | : | Mr Robertson |
| First Respondent | : | Self-Represented Litigant |
| Second Respondents | : | Self-Represented Litigants |
| Third Respondents | : | Mr S Jones |
| Independent Children's Lawyer | : | Ms A |
Solicitors:
| First Applicant | : | N/A |
| Second Applicants | : | Perth Family Lawyers |
| First Respondent | : | Self-Represented Litigant |
| Second Respondents | : | Self-Represented Litigants |
| Third Respondents | : | Mills Oakley |
| Independent Children's Lawyer | : | Law Firm A |
Case(s) referred to in decision(s):
Tifft (Deceased) and Thwaite & Ors [2019] FCWA 87
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 Tifft & Thwaite has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).
1The children, [Child A], born [in] 2009 and [Child B], born [in] 2012 are once again the subject of interim proceedings. The children are aged 11 and eight years respectively.
2The children's mother, [Ms Tifft] died [in] 2016. In 2019 the children's father, [Mr P Thwaite] was convicted of the murder of the mother and in [late] 2019 he was sentenced to life imprisonment with a 24 year non-parole period.
3The children have neither of their parents in their lives. The children live with the maternal grandparents who are the second applicants in these proceedings. The second respondents are the paternal uncle and aunt and the third respondents are the paternal grandparents.
4These further interim proceedings concern the arrangements for the children to spend time with their paternal family. The dispute concerns applications by the paternal family in which they seek to spend more time with the children than the maternal grandparents are prepared to agree to. All parties are motivated by what they perceive to be in the best interests of the children, but their perspectives are very different.
5Currently the children spend time with the paternal uncle and aunt and paternal grandparents pursuant to orders dated 26 April 2019. Those orders were made after contested interim proceedings to which my reasons delivered ex-tempore on 23 April 2019 refer ([2019] FCWA 87).
6In terms of the said interim orders the maternal grandparents have sole parental responsibility for the children who live with them. The children spend supervised time with the paternal uncle, aunt and grandparents each third Saturday for four hours. The proceedings were adjourned pending the finalisation of the father's criminal proceedings, with liberty to the parties to relist upon the final completion thereof.
7At [41] and [42] of my said reasons I explained that I was mindful that the criminal trial of the father was likely to have a significant impact on the members of both families. I was of the view that the children's time with the paternal family should be supervised until the criminal proceedings were completely concluded and the parties had an opportunity to come to terms with the final outcome.
8The father has appealed his conviction and sentence. The appeal could take some years to be concluded. I had not foreshadowed that supervision should continue for years.
9It is apparent from the orders sought by all parties and the Independent Children's Lawyer that continued supervision by an external agency is not sought and I am satisfied that it is not necessary. In relation to supervision I note the orders sought by the maternal grandparents are that the children's time with the paternal uncle and aunt be supervised by the paternal grandparents. For reasons given below I am satisfied that is not necessary either.
10What is at issue in these interim proceedings is the amount of time the children spend with the paternal uncle and aunt, and separately, the time they spend with the paternal grandparents. The maternal grandparents are opposed to overnight time. The parties' positions are considerably apart.
11In my said reasons I referred to the paternal uncle and aunt and the paternal grandparents collectively as the paternal family. In these interim proceedings the paternal uncle and aunt and the paternal grandparents each filed a minute of proposed orders in which they sought different orders in relation to the children's time with them. I had intended therefore to consider their respective applications separately, however their position changed upon the receipt of the ICL's minute of proposed orders such that I am able to consider the children's time with the paternal family members as one.
THE ORDERS PROPOSED BY THE INDEPENDENT CHILDREN'S LAWYER
12The ICL filed a minute of proposed orders on 8 July 2020. The orders proposed by her are as follows:
1Paragraphs 3, 4 and 7 of the orders made 26 April 2019 be discharged.
2The Second and Third Respondents spend time with the children [CHILD A] born [in] 2009 and [CHILD B] born [in] 2012 as follows:
a.10.00 am to 5.00 pm Saturday 11 July 2020;
b.Further to paragraph 3 below, during school term time to commence the first weekend of each new school term:
i)10.00 am to 5.00pm Saturday for 4 occasions; then
ii)10.00am Saturday to 12 noon Sunday for 5 occasions; then
iii)10.00 am Saturday to 5.00 pm Sunday for 5 occasions; then
iv)from after school or 3.00 pm Friday to 5.00 pm Sunday and 5.00pm Monday if it is a public holiday.
c.in the October 2020 school holidays from 10.00 am Saturday to 5.00 pm Sunday for the first two weekends;
d.Each alternate week of the December/ January 2020/2021 school holiday periods for three consecutive days and nights on the first occasion and 4 consecutive days and nights on the second occasion and 5 consecutive days and nights for the next and subsequent occasions with handovers to occur at 10.00 am Saturday commencing the first Saturday of the holiday period.
e.Commencing in 2021, the first week of each of the school term holidays commencing from after school or 3.00 pm Friday to 12 noon the middle Saturday.
3.Further to Paragraph 2 (b) above the Respondents’ term time will be each third weekend for two occasions and thereafter each alternate weekend
4.The Children spend time with the parties on Special Occasions as follows:
a.With the Second Applicants from 9.00 am Christmas Eve to 9.00 am Boxing Day 2020 and with the Second and Third Respondents from 9.00 m Boxing Day to 9.00 am 28 December 2020.
b.With the Second and Third Respondent for the Easter period from 9.00 am Good Friday to 5.00 pm Easter Monday in 2021 and each alternate year thereafter 9.00 am Good Friday to 5.00 pm Easter Monday in 2022 and each alternate year thereafter and with the second Applicant
c.On the children’s birthday if they are not in the parties care from after school or 3.00 pm if not a school day to 7.00 pm.
d.With the Second Applicants on the Mother’s Day weekend from 5.00 pm Saturday to 5.00 pm Sunday.
5.The First and Second Respondent’s term time with the children commences the first weekend of each new school term.
6.All handovers, unless agreed otherwise or after school, take place at [Location A] with the handovers to take place just inside the entrance when [Location A] is open and in the car park just inside the entrance when [Location A] is closed.
7.The children have liberty to call the Second Applicants and Second and Third Respondents as per their wishes with the party with whom the children are living with or spending time with at the time to facilitate the call.
8.The parties inform each other as soon as practicable of any significant health issues or medical emergency concerning the child.
9.The parties communicate with each other by text message for medical emergencies or emergency handover issues otherwise by email.
(As per the original)
THE ORDERS SOUGHT BY THE PARTIES
13The maternal grandparents filed a minute of proposed orders on 24 June 2020.
14The maternal grandparents agree to dispense with the requirement for supervision. They propose that the children spend time with the paternal family from 10.00 am to 5.00 pm every third Saturday. They seek an order that the paternal uncle and aunt be restrained from spending time with the children unless the paternal grandparents are present. They propose orders regarding handover which exclude the paternal uncle and aunt and seek an order that the children not be removed out of the Perth metropolitan area.
15The maternal grandparents propose that after 10 visits, each party provide a further minute of proposed orders as to further time, with the proceedings to be relisted if the parties cannot agree on that time.
16The paternal grandparents filed a minute of orders sought on 21 April 2020. However, at the hearing their counsel informed me that the paternal grandparents consented to the orders sought by the ICL in her said minute. The paternal grandparents sought two further orders to which the maternal grandparents consent on a without admission as to need basis, as follows:
•The second applicants be restrained by injunction and an injunction be hereby granted restraining the second applicants from:
(a)posting or sharing any reference to the second and third respondents via any form of social media; and
(b)posting or sharing any reference to the children with any connection to the criminal proceedings and or conviction of the first respondent.
•The second applicants authorise the children's counsellor to communicate with the ICL in relation to:
(a)the children's knowledge and understanding of the circumstances of their mother's death and the father's criminal proceedings; and
(b)how the children are coping;
on the basis that the ICL may then report to the parties.
17The orders sought by the paternal uncle and aunt were contained in a minute of orders sought filed 20 April 2020. In submissions the paternal aunt initially stated that if the maternal grandparents consent to the orders sought by the ICL in her said minute, the paternal uncle and aunt would no longer seek a final order that the children live with them. Subsequently it was confirmed that neither the paternal uncle and aunt nor the paternal grandparents sought a final live with order in relation to the children and their concession in this respect was unconditional.
18This concession was made to reassure the maternal grandparents that the paternal family did not seek to remove the children from their care. It is of course the case that when the Court is making orders in relation to children the children's best interests are the paramount consideration.
19I infer from the paternal aunt's submission in relation to the ICL's position that the paternal uncle and aunt also consent to orders in terms of the ICL's said minute.
The maternal grandparents' position
20The maternal grandparents are of the view that it is a significant change to remove supervision and therefore time should progress slowly. The maternal grandparents refer to the children having suffered the biggest loss they can suffer and say they should not be subjected to further emotional or psychological stress. They consider that the orders sought by them achieves that outcome.
21The maternal grandparents refer to the significant distrust and animosity between the maternal and paternal families. The maternal grandparents say the paternal uncle and aunt's affidavit refers to matters which demonstrate their animosity.
22Mr Robertson for the maternal grandparents explained that they consider supervision of the paternal aunt and uncle to be necessary because of what he described as their intense negative view towards them.
23Mr Robertson relied on [Dr W's] report and various aspects of it which referred to the grief suffered by the adults and the children. He explained for that reason the incremental steps recommended by Dr W were appropriate. The incremental step which the maternal grandparents have taken was to agree to the removal of supervision.
24Mr Robertson referred to Dr W's view that the issue raised concerning the complaints made by the maternal grandparents' neighbours had been raised with Dr W who was not satisfied that it represented any particular risk and yet the paternal uncle and aunt raise the issue as one in terms of which the maternal grandparents pose a risk to the children.
25Mr Robertson submitted that the spectre of an appeal and if successful, the spectre of a re-trial was capable of re-traumatising the parties who still had no closure. The point of his submission was that if the spend time arrangements were too extensive, it would be difficult to revisit those orders in the event of traumatisation and consequently it was better to take slower incremental steps.
26Mr Robertson submitted that the orders sought by the ICL were akin to those ordinarily made in favour of a parent, pointing out that these were not proceedings between parents. The maternal grandparents were concerned about how the children might react to overnight time and for that reason were of the view that a report from Dr W should be obtained before overnight time is introduced.
27Mr Robertson submitted the maternal grandparents were opposed to the arrangements proposed at Christmas, Easter and birthdays.
28In summary the maternal grandparents' position is that what is being sought by the paternal family and proposed by the ICL, is too much too soon. Mr Robertson submitted it ignores Dr W's warnings and he referred to the evidence of the paternal uncle and aunt as "dripping with hatred" for the maternal family.
29By way of additional evidence and in answer to my question, Mr Robertson informed me that Child A is having a break from his counselling and Child B is not having counselling at this time. Both children are therefore not attending counselling. Child B has [sports] every second fortnight, but otherwise their only commitments at weekends are visits by maternal relatives.
The paternal grandparents' position
30The paternal grandmother deposes that the children are happy and relaxed during their time with them and have expressed a wish to spend time at the paternal uncle and aunt's home. The paternal grandmother deposes that they are concerned to ensure that they manage any comments or enquiries the children may have regarding their parents in an appropriate way.
31The father's former partner, [Ms B] published a blog containing a reference to the father and the late mother. It referred to the paternal grandmother and also to the children. The paternal grandmother deposed that this was extremely distressing to her. The paternal grandmother commenced defamation action against Ms B, who subsequently provided an apology and paid her costs. The paternal grandparents are concerned about the children spending time with Ms B, who they consider to have been instrumental in driving the animosity between the parties.
32The paternal grandmother describes the children as having a relaxed, happy, stable and secure relationship with her and her husband.
33The children's time with the paternal family was supervised by [Supervision Agency A]. Supervision Agency A provided a report of the visits between May 2019 and October 2019, those visits having taken place at the paternal grandparents' home and both the paternal grandparents and paternal aunt and uncle were present. I have read the report very carefully and it is clear that the visits were positive with the supervisor noting a strong connection between the children and the paternal family as they played. The supervisor reported the children were relaxed and happy during their visits and from the observations there was no risk of harm, with the paternal family being alert, focused and aware of safety issues for the children.
34The visits were interrupted for a short time by reason of the COVID19 pandemic and then recommenced and continued to be supervised by Supervision Agency A. A report dated 30 June 2020 was provided in respect of visits which occurred between 2 November 2019 and 20 June 2020. Once again the supervisor reported the children were relaxed, happy, smiling and laughing during visits, all of which have been family focused. The supervisor reported that there appeared to be a secure connection between the children and all members of their maternal [sic] family demonstrated as they played or did hobby activities or sat and engaged in humorous exchanges. The supervisor reported the children continued to be safe in the company of their paternal family and reported in similar terms to the earlier report in that respect. A visit on 9 May 2020, being the day before Mother's Day was an emotional one for the children, but the paternal family were very supportive.
35The supervisor reported the children and the adults share a relaxed and mutual sense of fun and play. They shared jokes and made fun of situations demonstrating a mutual and positive relationship.
36Mr Jones for the paternal grandparents referred to various parts of Dr W's report and in particular Dr W's references to the grief amongst relatives and the loss suffered by everybody. He referred to Dr W's view that the children need as many people who love them to have an active role in their lives. Dr W recommended that visits start with three hours with a possibility of going to overnight contact. Mr Jones pointed out that there have been 20 supervised visits which have gone well. It was acknowledged this is not an intact family, but Mr Jones also pointed out that the children have a history of a close relationship with the paternal family and were accustomed to overnight time, including two or three days at times.
37Mr Jones submitted the proposals of the ICL were modest against the background of a history of overnight time which has been interrupted. He acknowledged that as the children mature there may be a grief reaction, but in his submission frequent, warm, enjoyable visits were the best remedy. He pointed out that the maternal grandparents were not concerned about themselves and the impact the arrangements might have on them, but on the children.
The paternal uncle and aunt's position
38The paternal uncle and aunt were self-represented and the paternal aunt made oral submissions. Her tone was conciliatory and sincere. They seek the removal of external supervision which is not an issue. The paternal aunt is a [health professional]. The paternal aunt said she and the paternal uncle have the children's best interests at heart and she provided her assurance on behalf of both of them that they would not discuss the proceedings with the children. The paternal aunt said the children love spending time with them. The paternal aunt said prior to the mother's death the children were living with them on a part time basis and the children would spend time with them three times a week. She said it was not true that she and the paternal uncle had hatred for the maternal grandparents. They were not representing the father and would do nothing to jeopardise the children's relationship with them. The paternal uncle and aunt undertake that they will not facilitate a relationship between the father and the children and they describe themselves also as victims of the father's actions. The paternal aunt pointed to Dr W's confidence in her and the paternal uncle, referring to their greater psychological maturity and ability to separate from the grief.
39The paternal aunt and uncle are self-represented and filed a lengthy affidavit. They are concerned that the Court is being provided with incorrect information which they feel it is necessary to correct.
40The paternal uncle and aunt set out at some length their criticisms of the maternal grandparents and events concerning the maternal grandparents' [daughter] which involved [Government Agency A] and the police. They assert that the maternal grandparents had deliberately omitted to inform the Court of this in attempt to mislead the Court.
41They depose that they submit that evidence because of their concern for the children as they enter their teenage years and the maternal grandparents continue to age.
42The paternal uncle and aunt deny any allegations of intimidating or demanding behaviour and instead refer to intimidation received by them from the maternal grandparents.
43The paternal uncle and aunt depose as to the impact the tragedy has had on their family and have engaged in counselling. They refer to the costs and stress of these proceedings, which they say are exacerbated, blaming the maternal grandparents and their lawyers.
44The paternal uncle and aunt describe a most enjoyable time with the children. They depose they love spending time with the children and wish to spend more time with them, including overnight time.
The father's position
45During the course of Mr Robertson's submissions on behalf of the maternal grandparents he stated the children have lost both of their parents. Although the father has not sought orders in these interim proceedings, he participated by telephone. In response to Mr Robertson's submission, the father sought to be heard. He said that having regard to that submission, perhaps the maternal grandparents would be agreeable to the children spending time with him at the prison. He said he strongly supported the children being in the care of the paternal uncle and aunt.
46There was no evidence that any of the other parties supported an order providing that the children spend time with the father. There is no evidence which would indicate that such an order would be in the children's best interests. In the circumstances I intend to consider the children's circumstances as between the maternal grandparents, the paternal grandparents and the paternal aunt and uncle.
The ICL's position
47[Ms A] submitted that it was her understanding that there was no dispute between the paternal uncle and aunt and the paternal grandparents and she submitted they comprised a very intact extended family working together to have a relationship with the children.
48Ms A referred to the trauma suffered by the maternal grandparents and observed that there is nothing in their affidavits to say what they were doing about this. Ms A submitted there was nothing before the Court to suggest that the children's time should be reduced because of trauma to the maternal grandparents. Ms A referred to the positive reports from Supervision Agency A and submitted that her proposals were modest.
49Ms A submitted that the reality for the children is that their family comprises the maternal grandparents and the paternal family. Ms A has proposed orders into the future to give the children "room for growth". She credited the maternal grandparents with overcoming their fears by agreeing to unsupervised time and she expressed the hope that the paternal family would not involve the father in their time.
DISCUSSION AND CONCLUSIONS
50These are interim proceedings. I cannot make findings of fact where the evidence is in dispute. In many important areas, including with respect to the relationship between these two families, there are a number of matters in dispute. It is important to ensure that the animosity between them does not obscure their focus on the best interests of the children.
51The evidence of the paternal uncle and aunt as to the maternal grandparents and their daughter is not of assistance to me at this time. Dr W took a similar view. That said, I take into account that the paternal uncle and aunt are self-represented. I am not suggesting that parts of their evidence may not be relevant. That will be a matter for trial, but some of their evidence has not assisted at this time and appears to have inflamed these interim proceedings.
52All parties relied on various parts of Dr W's report which supported their positions. I place weight on Dr W's report but I am also mindful that the report is almost three years old. It does not take into account the detailed reports of the visits the children have had with the paternal family in the last 12 months to which I have referred at [33] and [34] above. The ICL referred to the Supervision Agency A's reports and to favourable aspects of them.
53As to the children's views the supervisor reported that during a visit Child A became visibly upset as he wanted to have a visit at the paternal aunt and uncle's home, but was not allowed to do so. It was also reported at the time a visit was to end, the children frequently expressed they did not want to leave. This is consistent with the evidence of the paternal family.
54The supervisor reported that the sessions demonstrated a mutual and positive relationship between the children and the paternal family.
55As to the effect of any changes in the children's circumstances the supervisor reported the children reported as relaxed and happy during the visits. The paternal family deposed the children wish to spend more time with them, which is consistent with the supervisor's report. It is likely therefore that an increase in the children's time with the paternal family will have a beneficial effect upon them as it accords with their wishes.
56There is no practical difficulty and expense involved in an increase in the children's time with the paternal family. The supervisor reported that the children are safe in the company of the paternal family who have provided continuity in the care and support of the children during visits.
57The maternal grandparents wish to take things slowly and their proposals reflect that. They agree to the removal of supervision, but they are only prepared to propose orders for the next 10 occasions, that is time every third weekend, during the day and not overnight. They are concerned for the children's wellbeing. The children are living with them and I expect they are aware of the children's psychological health at this time and how they are coping in their day-to-day lives.
58Previously I took a cautious approach to the paternal family's time with the children. At that time I was considering the orders sought by the paternal family including orders to spend unsupervised time with the children. The maternal grandfather deposed to the strain and pressure on his family. The maternal grandparents, as the primary carers of the children had to provide for the children psychologically and I was of the view that it followed they had to maintain their own psychological health.
59The maternal grandparents have not referred to their personal circumstances in any detail in their recent evidence, instead they emphasise their concern for the children and the impact a significant change and undue stress may have on the children's emotional and psychological wellbeing. The maternal grandfather does however depose that the maternal grandparents' proposal will provide them with time to deal with the children being away from their care for a significant period and on an unsupervised basis.
60The paternal family, separately, sought a significant increase in the time the children spend with each of them and such was the increase that their time would either have overlapped or left the children no weekend time with the maternal grandparents. That was not their position at the hearing, nevertheless I am faced with what seem to be polarised positions of the parties. In my carefully considered view, orders which are in the best interests of the children are somewhere in between.
61I consider that the frequency of visits should be maintained, that is they should occur every three weeks, consistent with the existing arrangement. I consider visits should increase to all day that is, from 10.00 am to 5.00 pm for four occasions. I consider that an overnight can then be introduced. A natural progression of the children's time with the paternal grandparents is that the children spend time with them from 10.00 am on Saturday through to midday on Sunday. This will enable the children to spend overnight with the paternal grandparents, settle in their home and have a relaxed start the next morning before returning to the maternal grandparents.
62Mr Robertson submitted there is a risk of re-traumatisation if criminal proceedings are revisited, by which time the children might be spending some overnight on a regular basis with the paternal family. I accept this as a possibility, but when I balance this with the information contained in the Supervision Agency A's reports, I am not persuaded that this is a sufficient reason not to introduce overnight time at this stage. I refer above to the favourable report from Supervision Agency A upon which I rely in my determination that orders providing for overnight time with the paternal family are in the best interests of the children.
63I do not consider it to be in the children's best interests to introduce overnight time with the paternal grandparents and separate overnight time with the paternal uncle and aunt. In submissions, orders for separate time were not sought. While I fully understand that the paternal family members have separate applications I consider the children should become accustomed to overnight visits with their paternal grandparents before overnights at another venue are introduced. This is consistent with [Ms O's] report.
64I consider that a second night with the paternal grandparents that is, a full weekend, should be introduced before the children spend overnight at the home of the paternal uncle and aunt.
65The children spend time with the paternal uncle and aunt when they see the paternal grandparents. There is no difficulty between the paternal family, they should all be able to enjoy time with the children together. The children's best interests are best served with this stability and routine.
66In broad terms I consider the gradual increase in time proposed by the ICL to be in the best interests of the children except I consider that the frequency of visits should remain at three week intervals. In January 2019 Ms O reported that contact every three weeks seemed to be working well in terms of everyone's emotional capacity to deal with that frequency.
67The overnight visits from 10.00 am Saturday to midday on Sunday should occur for four occasions and on this basis the next visit will occur in the school holidays at the end of Term 4. The visits should at that time be extended and occur from 10.00 am Saturday to 5.00 pm Sunday for a further five occasions and on this basis the next visit will occur in the holidays at the end of Term 1 in 2021.
68At that time the children should spend time with the paternal grandparents from 3.00 pm Friday or after school until 5.00 pm Sunday, or Monday if it is a public holiday. It is intended that this three weekly arrangement will continue during the entire year including the school holidays.
69The school holidays are an opportunity for the children to spend extra time with the paternal family. By the time of the school holidays at the end of Term 4 in 2020 the children will have spent an overnight with the paternal grandparents. In those holidays I consider the children should spend two additional one night periods with the paternal family, although those additional nights should not be consecutive to each other or with the existing arrangement.
70By the time of the school holidays at the end of Term 1 in 2021 the children will commence spending two consecutive nights that is, a weekend every third week, with the paternal family. This arrangement should continue during the school terms with further time introduced in subsequent holidays. In the holidays at the end of Terms 2 and 3 in 2021 the usual weekend time should be extended such that the children spend three consecutive nights with the paternal family. By the time of the school holidays at the end of Term 4 in 2021 and thereafter further or other arrangements can be considered depending on how the children are progressing or coping and the circumstances of the parties at that time.
71I do not consider the children's time with the paternal uncle and aunt requires to be supervised. It follows that the children may visit the home of the paternal uncle and aunt while they are spending time with the paternal grandparents, although the children's overnight visits with the paternal uncle and aunt should not commence until the full weekend away, that is when time from Friday to Sunday is introduced which will be in the holidays at the end of Term 1 in 2021. I am mindful that Child A has expressed a wish to go to the paternal uncle and aunt's home and he spoke to Ms O of his happy memories there. I am also mindful of the distrust between the maternal grandparents and the paternal uncle and aunt.
72I have taken into account it will take some months for this arrangement to be fully implemented. That recognises the need for the maternal grandparents to have an opportunity to deal with the children's time away from them as sought. From the perspective of the paternal family they will no longer incur the costs and restrictions of supervision. The children will have an opportunity of spending a full day with the paternal family followed by overnight visits increasing at an appropriate pace. There are less likely to be any difficulties with the changes if the increase in time is such that the children have an opportunity to adjust to the arrangements. I do not consider it necessary for the parties to obtain further reports or return to Court for a determination before the holidays at the end of Term 4 in 2021, unless required, and that has been taken into account in crafting these orders.
73I consider the children would enjoy seeing their paternal family at Christmas time and, receiving presents. By reason of the difficulties between the two families, (described by Ms O as resentment and distrust), I do not consider it to be in the best interests of the children that there be a handover on Christmas Day. There is a risk that the children may either be exposed to some conflict or some stress on the part of family members at this special time. I consider the children's time with the maternal grandparents on Christmas Day should be uninterrupted. The children's time with the paternal family falls on Boxing Day in 2020 and on that occasion the children should spend time with the paternal family from 10.00 am on 26 December to 5.00 pm on 27 December. They will be able to celebrate Christmas together at that time and the parties can make arrangements accordingly.
74Similarly the children may enjoy spending some time at the Easter weekend with their paternal family and enjoy Easter activities. The children should remain with the maternal grandparents on Easter Sunday, but spend Easter Monday from 10.00 am to 5.00 pm with the paternal family.
75As to the children's birthdays, I consider that for at least 2021 for the reasons set out above, the children's time on their birthdays should not be divided between the families. The children should remain in the care of the maternal grandparents, but spend time with the paternal family on the first Saturday after the birthday, from 10.00 am to 5.00 pm. This will give them an opportunity to celebrate the birthday at that time. By way of explanation, my reasoning is that these special occasions can be emotional for the children and all of the parties and my intention in avoiding handovers on those days is to ensure that the children are not exposed to any distress or difficulty which may occur.
76I intend to order that handover take place between the second applicants and the third respondents. The paternal uncle and aunt should not be involved in the handovers, again to avoid any conflict which might occur.
77I envisage these arrangements will remain in place until the holidays at the end of Term 4 in 2021. At that time the parties may wish to discuss further or other arrangements and in the absence of agreement an updating report from Dr W may be obtained.
78I will hear from counsel and the parties as to the form of the orders arising from the arrangements which I have outlined above.
THE PROPOSED ORDERS
79Subject to hearing from counsel and the paternal uncle and aunt, the orders I propose to make are as follows:
1Paragraphs 3, 4 and 7 of the orders dated 26 April 2019 be discharged.
2The children CHILD A born [in] 2009 and CHILD B born [in] 2012 spend time with the Second Respondents, [MR S THWAITE and MS ALPORT] and Third Respondents, [MR ANDERSON and MS ANDERSON] as follows:
(a) with effect from 11 July 2020 from 10.00 am to 5.00 pm every three weeks for four occasions;
(b)thereafter from 10.00 am on Saturday to 12.00 noon on Sunday every three weeks for four occasions;
(c)thereafter from 10.00 am on Saturday to 5.00 pm Sunday every three weeks for five occasions;
(d)thereafter from 3.00 pm (or the conclusion of school) on Friday to 5.00 pm on Sunday, or 5.00 pm on Monday if Monday is a public holiday or pupil free day, every three weeks;
(e) in the holidays at the end of Term 4 in 2020 for a two separate overnight periods from 10.00 am to 5.00 pm the following day on dates to be agreed but not consecutive to the existing arrangement; and
(f)in the holidays at the end of Terms 2 and 3 in 2021 and thereafter for a period of one additional night consecutive to the existing arrangement.
3The children spend time with the Second and Third Respondents on special occasions as follows:
(a) from 10.00 am Boxing Day to 5.00 pm 27 December 2020;
(b)from 10.00 am to 5.00 pm on Easter Monday; and
(c)on the first Saturday after each of the children's birthdays from 10.00 am to 5.00 pm.
4The parties be at liberty to vary these orders provided such variations are agreed in writing.
5All handovers shall occur between the Second Applicants, [MR TIFFT and MRS TIFFT] and the Third Respondents, and shall, unless agreed otherwise or after school, take place at [Location A] with the handovers to take place just inside the entrance when [Location A] is open and in the car park just inside the entrance when [Location A] is closed.
6The parties shall inform each other as soon as practicable of any significant health issues or medical emergency concerning the child.
7The parties shall communicate with each other by text message for medical emergencies or emergency handover issues and otherwise by email.
8Without admission as to need, the second applicants be restrained by injunction and an injunction be hereby granted restraining the second applicants from:
(a)posting or sharing any reference to the second and third respondents via any form of social media; and
(b)posting or sharing any reference to the children with any connection to the criminal proceedings and or conviction of the first respondent.
9The second applicants authorise the children's counsellor to communicate with the ICL in relation to:
(a)the children's knowledge and understanding of the circumstances of their mother's death and the father's criminal proceedings; and
(b)how the children are coping;
on the basis that the ICL may then report to the parties.
10The parties have liberty to relist.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
RM
Associate
20 AUGUST 2020
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