Tifft (Deceased) and Thwaite and Ors

[2019] FCWA 87

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: TIFFT (Deceased) and THWAITE & ORS [2019] FCWA 87

CORAM: DUNCANSON J

HEARD: 23 APRIL 2019

DELIVERED : Ex tempore

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 the children live with the maternal grandparents - Where it is in the best interests of the children that their time with the paternal family be supervised until the conclusion of the father's criminal proceedings

Legislation:

Family Court Act 1997 (WA)

Category: Reportable

Representation:

Counsel:

First Applicant	:	N/A
Second Applicants	:	Mrs Farmer
First Respondent	:	Self-Represented Litigant
Second Respondents	:	Mr J Redman
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	:	Tindall Gask Bentley Lawyers
Third Respondents	:	Mills Oakley
Independent Children's Lawyer	:	Law Firm A

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

Tifft (Deceased) and Thwaite & Ors [2018] FCWA 54

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).

1These proceedings concern the children [Child A], born [in] 2009 and [Child B], born [in] 2012. The children are nine and seven years respectively. The children's mother, [Ms Tifft] died in tragic circumstances having been fatally [assaulted] by the father, [Mr P Thwaite] [in] 2016.

2The father is the first respondent in these proceedings. He is in custody awaiting trial. His trial is scheduled to take place in 2019. The father does not seek orders in these interim proceedings.

3The second applicants are the maternal grandparents. The second respondents are the paternal uncle and aunt. The third respondents are the paternal grandparents.

4The children live with the maternal grandparents. On 26 March 2018, the Court made orders providing that [Ms O] of [Counselling Service A] be appointed to undertake reportable family therapy with the children and the parties, excluding the father. The circumstances leading up to the making of those orders are set out in my reasons for decision delivered on 26 March 2018.

5The children began spending time with the second and third respondents in August 2018 and that time was supervised by Ms O. Prior to that the children had not spent time with the paternal family.

6Ms O provided a report dated 23 January 2019. Ms O reported that the maternal grandparents were still deeply grieving, they were concerned that the paternal family would place the children in contact with their father and concerned that the children might become emotionally destabilised.

7Ms O reported that the paternal grandparents had missed being a part of the children's lives and were trying to come to terms with their son's actions. They understood the need for stability in the children's lives and sensitivity moving forward. Ms O reported the paternal uncle and aunt were open to establishing boundaries for engagement with the children and were respectful and understanding in discussions about the children's memories.

8As to the children, Ms O reported that Child A looked forward to the first visit and had happy memories of the paternal families' homes. Ms O reported that Child A appeared detached from the events of his mother's death and from truly understanding that his father was responsible. He needs ongoing therapeutic support in the longer term. Ms O reported that Child A has suppressed much of his trauma. He feels cared for and supported at home with the maternal grandparents and talks to them if he feels worried or sad and they will always listen to him.

9In relation to Child B, she did not talk in a concrete way about her mother's death and Ms O was not sure she had any awareness that her father was responsible. She too had happy memories of the paternal family. She appeared distant at the start of visits, but Ms O reported that like Child A, she has a long way to go in coping with complex grief and trauma.

10Ms O reported that under stress it is likely that Child B would regress emotionally in order to cope with challenging feelings and memories.

11Ms O reported as to the visits which she had supervised. In particular she had not heard anything spoken that raised concern and parameters and boundaries for conversations had been discussed in detail prior to the visits. The paternal family followed advice and the report suggests they conducted themselves appropriately throughout.

12The primary issue now is whether the visits should move to unsupervised. The maternal grandparents are strongly opposed to this as they see emotional and psychological risks present for the children.

13Ms O has completed her supervision. She will not supervise further as to do so would compromise her therapeutic role. Her view was that ongoing contact between the children and the paternal family was inevitable and she observed that contact every three weeks was working well in terms of everyone's emotional capacity to cope with that frequency.

The maternal grandparents' position

14The maternal grandparents seek an order that they have sole parental responsibility for the children and that the children live with them. They propose that the paternal grandparents and uncle and aunt spend time with the children every third Saturday from 3.00 pm to 5.00 pm supervised by a supervision agency. They propose a number of injunctions largely concerned with reference to the children's parents and their father.

15I have read the affidavits of the maternal grandparents very carefully. They have a number of concerns including that the paternal grandmother will minimise the father's actions and try and encourage a relationship between him and the children. The maternal grandfather deposes [at 39]:

These, as well as the criminal proceedings have caused tremendous strain and pressure on myself, my wife and our family. Not one day goes by when we are not reminded of the traumatic events surrounding [Ms Tifft's] death, and the impact that has had on our grandchildren.

16The maternal grandparents have attended counselling and refer to pressure received from the paternal family, their lawyers and the Independent Children’s Lawyer to put in place contact at a pace which has taken an immense toll. The maternal grandmother is currently prescribed antidepressants.

17The maternal grandparents rely on an affidavit of [Ms B], who is the former partner of the father. The affidavit refers to the paternal grandmother making excuses for poor behaviour of her family and doing anything to protect them. She refers to the paternal uncle being easily manipulated by the paternal grandmother. She deposes to the father's behaviour and that of his family in relation to her own child.

18The maternal grandmother deposes that the children do not show excitement about spending time with the paternal family, except when receiving gifts. The maternal grandmother deposes "that any significant change to the care arrangements of the Children will have (sic) a devastating effect on me emotionally." She asks the Court to take matters relatively slowly.

The paternal families' position

19As with the maternal grandparents, I have read the affidavits of the paternal grandparents and the paternal uncle and aunt very carefully. The paternal uncle and aunt depose to very happy visits between them and the children. They readily undertake to abide by orders that they do not initiate conversation relating to either of the child's parents. They suggest they will take advice and behave appropriately. The paternal uncle sought psychological assistance to help him deal with the events and his psychologist described him as a logical, balanced and stable individual with an absence of any indication of being violent or posing a risk to his nephew and niece.

20The paternal grandmother deposes to some very happy visits with the children and annexes family photographs which would support her evidence. The maternal grandmother deposes she will take advice from Ms O and will comply with injunctions on a without admission basis. She describes the children's relationship with the paternal family as relaxed, happy, stable and secure.

21The paternal grandfather also deposes to some very happy visits in which the children have enjoyed themselves. There have been nine visits of about an hour each.

22The paternal family express dismay at the reliance by the maternal grandparents on the affidavit of Ms B, the father's former partner and they deny much of it. I place little weight on this affidavit in these interim proceedings.

The Independent Children’s Lawyer's position

23The Independent Children’s Lawyer has filed a minute of orders sought. She proposes that the children spend time with the second and third respondents on alternate Saturdays for increasing periods of time from three hours, to eight hours on seven occasions and then overnight from Saturday to Sunday on four occasions and thereafter each alternate weekend from Friday to Sunday, or Monday in the event of a public holiday. She proposes increasing periods of time during school holidays until 2020, by which time the children will spend the first week of each term holidays with the paternal family. She also makes proposals for special occasions.

24The Independent Children’s Lawyer seeks an order that the paternal family be restrained from taking the children, or facilitating the children speaking with the father, or providing them with any correspondence from him, or permitting a third party to do so without her consent. Family therapy is to continue.

DISCUSSION

25It is clear that the parties are considerably apart. The paternal uncle and aunt support the orders sought by the Independent Children’s Lawyer, which are for increasing periods of time leading to overnight, then weekends and school holidays. The paternal grandparents seek the orders as set out in their minute of proposed orders which are not dissimilar to those of the Independent Children’s Lawyer although there are some differences. On the other hand the maternal grandparents propose an increase in the time of the visits of one hour, such that the children spend time with the paternal family for two hours every three weeks.

THE LEGAL PRINCIPLES

26At paragraphs 19 to 21 of [2018] FCWA 54 I set out the legal principles which govern this matter. As with [Dr W's] report, the report of Ms O is only part of the evidence in the proceedings and has not yet been tested by cross-examination.

27As to the children's views, the maternal grandmother deposes that the children do not show any interest or excitement about spending time with the paternal family except when they are provided with gifts. She further deposes that Child A told his maternal aunt that he only attends visits so that he "can protect [Child B]".

28In contrast the paternal grandmother describes visits, including laughter and fun with the children asking at the end of a visit when they would see them again. The paternal uncle similarly describes such visits. It is likely that the children have a close and loving relationship with the maternal grandparents who have been responsible for their care since the death of their mother. The paternal family deposes that the children have settled well into resuming their relationship with the paternal family and have requested to spend time at their home.

29The paternal grandmother says that the bond between the paternal uncle and aunt and the children is getting stronger each time and the paternal uncle says the relationship of the children with him and the paternal aunt appears to be strengthening with each visit.

30As to the effect of any changes in the children's circumstances, the maternal grandparents propose a very small increase in the amount of time with no increase in the frequency of visits. The paternal family support the orders sought by the Independent Children’s Lawyer which amount to a significant change to the children's circumstances. I am unable to make any finding as to what effect such a significant change may have on the children. I note however that Ms O referred to the paternal grandparents realising the need for "sensitivity moving forward and for time to be taken before any big changes are made for [Child A] and [Child B], including a move to regular unsupervised contact".

31Ms O reported that neither child is emotionally distressed in any way by the visits. She does not compromise her therapeutic role by making a recommendation, stating it is for the Court to decide how and when future visits are to occur.

32I am mindful that Ms O reported that both children have a long way to go in coping with complex grief and trauma and with respect to Child A, with his increasing maturity is likely to come increasing emotional confusion about this father. I consider it is likely to be in the best interests of the children that any changes in their arrangements be introduced gradually and sensitively.

33There is practical difficulty and expense as the maternal grandparents require future visits to be supervised.

34As to the capacity of the parties to provide for the needs of the children, the children have lived with the maternal grandparents since their mother's death. The maternal grandfather says they have settled and are in a regular routine and are progressing well at school.

35The maternal grandfather is concerned that a significant change to the care arrangements of the children would have a devastating effect on the maternal grandmother. He says the criminal proceedings have been significantly stressful and the maternal grandparents have attended counselling. He asks the Court to consider the best interests of the children by taking matters slowly and putting in place time which would allow the children to be protected, but also to consider the impact of moving to unsupervised time would have on himself, his family and in particular the maternal grandmother.

36I will be mindful to consider the impact of any orders I make upon the children's primary carers.

37The paternal family depose that they have conducted themselves appropriately during the visits and ensured that the children have had a happy and uneventful time. They have been accepting of advice from Ms O as to how to discuss any issues which may arise regarding the children's parents and assure the Court that they will continue to conduct themselves appropriately in this respect. There is considerable distrust of the paternal family by the maternal grandparents in relation to this.

38The orders I make today will be interim orders only. I acknowledge that these proceedings are stressful to all parties, but I am unable to make orders at this stage which will be anything other than short-term and temporary. The criminal trial has yet to take place and that will undoubtedly impose added stress on all parties. There is a very difficult time ahead and I take this into account as well.

39The risk to the children would appear to be the psychological impact upon them of coming to terms with the loss of their parents in their lives and the circumstances in which that occurred. The maternal grandparents assert that there is a risk to the children of being exposed to differing views about the loss of their parents and about their father. I consider there are likely to be a number of emotional and psychological challenges ahead for the children which will have to be managed by the maternal grandparents. I consider that it would be in the best interests of the children to put in place arrangements which will support the maternal grandparents as their primary carers. In my view this requires orders which provide for that time to progress gradually consistent with the recommendations of Dr W.

40Ms O indicated that a frequency of visits every three weeks is serving the children well and visits where the paternal family together meet the children rather than having separate time is also appropriate. I am of the view that the significant change in the children's arrangement proposed by the Independent Children’s Lawyer may not be beneficial to them in that it may have an adverse impact upon their primary carers.

41I am mindful that the criminal trial is to occur [at a later date] and this too is likely to have a significant impact on all members of the family. At this difficult time I consider it would place the maternal grandparents in considerable distress if the children's time with the paternal family was unsupervised. The maternal grandparents must provide for the children psychologically. It follows that they must maintain their own psychological health. The ability of the maternal grandparents to function as parents to these children is in my view imperative to the children's continued development and progress. I do not intend to place an unbearable strain upon the maternal grandparents' ability to do that.

42I am of the view that the orders which are in the best interests of the children are those which provide for their ongoing time with the paternal family as I consider it to be beneficial to the children to maintain that connection. The frequency of every three weeks appears to be Ms O's recommendation to the extent that she has made a recommendation and she says that is serving the children well. Until the criminal proceedings are completely concluded, I consider that supervision should remain. Once those proceedings are concluded and the final outcome is known, such that the parties have come to terms with it, I consider the children's time with the paternal family can move to unsupervised time. I consider the amount of time can now increase to four hours every three weeks and this time will have to be supervised. I determined that the expense be shared between the paternal families.

43It is appropriate to allow the children to attend the paternal families’ homes. Child A has indicated a wish to do so. There will have to be in place appropriate injunctions as agreed by the parties on a without admission basis. After a number of visits and coinciding with the conclusion of the criminal proceedings a report should be obtained with the intention that time move to unsupervised provided that the report from Ms O is not an adverse one.

44After further submissions I made the following orders:

THE ORDERS

Until further order:

1The Second Applicants, [MR TIFFT and MRS TIFFT] have sole parental responsibility for the children, [CHILD A], born [in] 2009 and [CHILD B], born [in] 2012 (“the children”).

2The children live with the Second Applicants.

3That the Second Respondents, [MR S THWAITE and MS ALPORT] and the Third Respondents, [MR ANDERSON and MS ANDERSON] spend supervised time with the children as follows:

(a)on 4 May 2019, 25 May 2019, 15 June 2019, 20 July 2019, 10 August 2019 and each third Saturday for a period of no more than four hours as agreed between the parties, failing which between 12.00 noon and 4.00 pm, subject to the availability of the supervisor;

(b)such time to be supervised by [Supervision Agency A]; and

(c)all costs relating to the said supervision be shared equally between the Second Respondents and the Third Respondents.

4The parties do all things to arrange their intake sessions with [Supervision Agency A] before Friday, 3 May 2019.

5That the time the Second Respondents and Third Respondents spend with the children be suspended from 23 June 2019 to 19 July 2019, inclusive.

6In the event that the children are unable to spend time with the Second and Third Respondents, then make-up time be provided as may be agreed, and failing agreement within two weeks of the missed time.

7For the purposes of handover, the Second Applicants deliver the children to the supervisor at [Location A] at the commencement of the Second Respondents and Third Respondents' time, and the Second Respondents and Third Respondents shall return the children with the supervisor at [Location A] at the conclusion of their time.

8That the Second Respondents and Third Respondents, on a without admission basis, be restrained by injunction from the following:

(a)denigrating or criticising the Second Applicants or their family in the presence of or hearing of the children or allowing any other person to do so;

(b)allowing the children to come in to contact with the First Respondent, [MR P THWAITE] by any means, including but not limited to telephone, correspondence, and social media;

(c)discussing the father with the children, or allowing any other person to do so, unless in response to questions from the children;

(d)discussing the mother with the children, or allowing any other person to do so, unless in response to questions from the children;

(e)showing photographs of the father to the children, or allowing any other person to do so; and

(f)discussing both the family law and criminal law proceedings with the children, or allowing any other person to do so.

9That paragraph 6 of orders dated 10 August 2017 be discharged.

10A copy of these orders and Her Honour's reasons be provided to [Supervision Agency A] and [Ms O].

11That the parties continue to engage in family therapy with [Ms O] as directed by [Ms O] in accordance with paragraphs 4, 5, 6, 8 and 10 of the Consent Orders dated 26 March 2018.

12That the proceedings stand adjourned pending the finalisation of the First Respondent’s criminal proceedings, with liberty to the parties to relist to the Honourable Judges Duty List upon final completion of same.

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

RM

Associate

1 MAY 2019