Tifft (Deceased) and Thwaite and Ors

[2018] FCWA 54

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: TIFFT (Deceased) and THWAITE & ORS [2018] FCWA 54

CORAM: DUNCANSON J

HEARD: 26 MARCH 2018

DELIVERED : Ex tempore

FILE NO/S: PTW 7635 of 2016

BETWEEN: MS TIFFT (Deceased)

Applicant

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 mother of the children is deceased and the father is in custody - Where the children live with the maternal grandparents - Where it is in the best interests of the children for them and the parties to commence therapy with a view to reintroducing the children to the paternal family

Legislation:

Family Court Act 1997 (WA) s 66C

Category: Reportable

Representation:

Counsel:

Applicant	:	N/A
Second Applicants	:	Ms N Bowen
First Respondent	:	Self-Represented Litigant
Second Respondents	:	Mr J Redman
Third Respondents	:	Ms K Kerr
Independent Children's Lawyer	:	[A Legal Practitioner]

Solicitors:

Applicant	:	N/A
Second Applicants	:	Perth Family Lawyers
First Respondent	:	No Appearance
Second Respondents	:	Slater & Gordon
Third Respondents	:	Mills Oakley
Independent Children's Lawyer	:	[A Law Firm]

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

Nil

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

1These proceedings concern the children, [Child A] born [in] 2009 and [Child B] born [in] 2012. The children are eight and six years respectively. Tragically the children's mother, [Ms Tifft] is deceased having been fatally [assaulted] by the father, [Mr P Thwaite].

2The father is the first respondent in these proceedings. He is currently in custody awaiting trial.

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

4Currently the children live with the maternal grandparents. The father, the paternal uncle and aunt and the paternal grandparents wish to spend time with the children. The maternal grandparents are opposed to that occurring.

5On 10 August 2017 it was ordered, until further order that the maternal grandparents have sole parental responsibility for the children. They were permitted to obtain passports for the children. They were ordered to provide to the Independent Children's Lawyer not less than once a month information concerning the children's progress at school and photographs of the children together with copies of school reports.

6On 27 September 2017 [Dr W], Clinical Psychologist was appointed Single Expert Witness. This order was made by consent of all parties except for the father. The terms of reference included what time if any the children should spend with the father and members of his family and what preparation should be undertaken with respect to the children recommencing a relationship with the paternal family.

7Dr W provided a report dated 19 September 2017. By agreement of the parties, Dr W had commenced preparation of his report prior to the date of his appointment.

8Dr W noted that his involvement at this time was with respect to the dispute between the maternal grandparents and the paternal family as to parenting orders in relation to the children.

9At [61] of his report, Dr W stated:

In my opinion it would be in the children's best long-term interests and ability to deal with trauma and loss, if they are able to facilitate time with both sets of grandparents and auntie and uncle.

10Dr W recommended that this be done through a skilled family therapist such as [Ms O].

11The paternal family supported by the ICL proposes that the children commence therapy with Ms O. The maternal grandparents disagree.

12An order was made on 22 January 2018 that the paternal uncle and aunt file an application and an affidavit of evidence on which they rely concerning the implementation of Dr W's report. That implementation concerned family therapy, with a view to the children spending time with the paternal family as set out at paragraph 64 of Dr W's report. The scope of the determination was accordingly limited to that issue.

13On 2 February 2018 the paternal uncle and aunt filed an application in a case in which they sought orders that all parties do all things necessary to facilitate the children attending therapy and/or contact with the second and third respondents as recommended by Ms O.

14The paternal grandparents filed a response on 9 March 2018 in which they proposed that Ms O be appointed to undertake reportable family therapy with the children and the parties excluding the father. They propose an order that the time the children spend with the second and third respondents be as directed by the therapist.

15On 9 March 2018 the father filed a response in which he agreed with the orders sought by the paternal uncle and aunt. He also sought an order that contact between himself and the children recommence immediately by way of letters, phone calls, Skype calls and visits.

16It was not the Court's intention to consider the children's communication or time with the father in these interim proceedings. Dr W reported that there is "no way" the maternal grandparents will be able to cope with contact between the father and the children at this time and it would be detrimental to the children's wellbeing if they cannot cope. Further, Dr W opined that it would be helpful if the father was excluded from the proceedings until after sentencing as he saw the father's presence in the proceedings as detrimental to "shifting issues" between the maternal and paternal families. I consider the father's application to be premature. I therefore intend to adjourn generally the response of the father, so far as it seeks orders that the children communicate or spend time with him.

17The maternal grandparents have not filed a response, but I am told they oppose the orders sought for family therapy and the spend time orders.

18The issue to be determined is primarily whether Ms O should be appointed to undertake family therapy with the children and the parties excluding the father.

THE LEGAL PRINCIPLES

19The orders sought with respect to family therapy with the children and the parties, are interim parenting orders. These proceedings therefore are determined under Part 5 of the Family Court Act 1997 (WA) ("the Act"). In reaching my decision I am guided by the objects of that part and the principles underlining those objects. In deciding whether to make a particular parenting order I must regard the best interests of the children as the paramount consideration. Section 66C sets out how I determine what is in the children's best interests and I must consider the primary and additional considerations so far as they are relevant.

20It is unnecessary for me to address each and every consideration where it is obvious findings as to some of the s 66C factors will be determinative of the children's best interests on an interim basis.

21I am not able to make any findings of fact where the evidence is in dispute.

22I am mindful that the report of Dr W is only part of the evidence in the proceedings and, as with all of the evidence it has not been tested by cross-examination.

23As to the primary considerations I am unable to make any finding as to whether it is to the benefit of the children to have a meaningful relationship with the father. The children are not at risk of physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence at this time.

24As to the children's views, both children told Dr W that they feel sad. Child A has good memories of the paternal uncle and aunt and he does not know why he does not see them and the paternal grandparents. He thought he would like to see the paternal uncle and aunt possibly when he is older.

25Child B remembers the paternal uncle and aunt as kind and does not know why she does not see them. She remembers the paternal grandparents as nice.

26Dr W reported that although Child B is very young and Child A is predominantly in avoidance, the information provided by them is quite relevant and helpful.

27The children have lived with the maternal grandparents since the death of their mother. The maternal grandparents were actively involved in their care prior to that. The paternal grandparents depose that prior to the separation of the parties in August 2016 they had an active and constant involvement with the children from their births until the death of their mother. The paternal grandparents have now not seen the children [for a significant period of time]. The paternal uncle and aunt were also significant in the children's lives as reported by Dr W.

28The effect of any changes in the children's circumstances is of relevance in these proceedings. It is not suggested that the children should be separated from the maternal grandparents and in that sense there would not be a change to their circumstances. It would be a change to their circumstances to be reintroduced to the paternal family; however, this is a change which Dr W recommends subject to it being done through a skilled therapist such as Ms O.

29As things stand the children have lost both of their parents in their lives, but they have also lost other significant family members on their father's side of the family.

30As to practical difficulty and expense, therapy is required with the therapist to establish a relationship with the children and the parties.

31There is a cost associated with the therapy which will be incurred by the parties.

32There is no longer a good relationship between the maternal and paternal families and Dr W addresses the maternal grandparents' concerns very clearly in his report.

33Counsel for the maternal grandparents informed the Court that the father's criminal trial may take place [later this year]. The maternal grandparents will be involved in those proceedings and counsel submitted their trauma would be re-agitated in circumstances where they must maintain their role as caregivers for the children. Counsel submitted the maternal grandparents are still grieving and to ask them to set aside their concerns, emotion and grief was a "big ask" and that the process sought to be put in place should be taken slowly.

34Dr W acknowledges the difficulties which the reintroduction to the paternal family will create for the maternal grandparents, but he is of the view that if progress is made in incremental steps and the maternal grandparents do not feel threatened by the loss of the care of the children, the emotion created by contact would be offset by their understanding of the value that contact may have for the children.

35Dr W is satisfied that the paternal uncle and aunt are well grounded and he reports the paternal grandparents could be given very clear guidelines about not involving the children in any discussion with the father, or involving him in their contact.

36It is clear that there are some very complicated psychological and emotional issues arising from the proposed reintroduction of the children to the paternal family.

37The family therapy recommended by Dr W is supported by the ICL. She referred to Dr W's own experience in dealing with matters in which a parent causes the death of the other. She was opposed to any further delay in the process of the children reconnecting with the paternal family.

38I understand the children are seeing a counsellor and although Dr W had not spoken to her, Ms O should be provided with this information to enable her to do so, if she considers it appropriate.

39The children have suffered considerable loss. Dr W points to an opportunity to address that by the reintroduction of the children to the paternal family, but only after skilled therapy has taken place. I consider it to be in the best interests of the children that an order be made for therapy to take place.

40The alternative would be that the children have no relationship with the paternal family at this time.

41I agree with Dr W when he points out that the children have not just lost their mother and father, but they have also lost some of the most significant relatives in their lives. He reported that from the children's reactions they would have a positive experience in seeing these relatives again.

42Having considered the evidence and the submissions of all parties very carefully, I have concluded that it would be in the best interests of the children that they and the parties, excluding the father, commence therapy with Ms O with a view to reintroducing the paternal uncle and aunt and grandparents into their lives. I consider it appropriate that after therapy has taken place, the Court be provided with a report from Ms O containing her advice and recommendations. The Court will then consider those recommendations and make further orders unless the parties are in agreement as to progress and the Court's intervention is not required.

43If all parties agree, with the therapist's recommendation the matter will progress. If after therapy there remains no agreement the matter may be relisted.

44There is of course a cost associated with therapy. I expect that cost will be a financial impost on all parties. Having regard to the wish of all parties to do what is in the best interests of the children, I am of the view that the cost should be shared equally between the second applicants, the second respondents and the third respondents.

THE ORDERS

1Until further order, [Ms O] ("the Therapist") is hereby appointed to undertake reportable family therapy with the children, [CHILD A] born [in] 2009 and [CHILD B] born [in] 2012 and the parties excluding the First Respondent, [MR P THWAITE].

2Further to paragraph 1 above the parties excluding the First Respondent forthwith do all things necessary to facilitate the commencement of family therapy with the Therapist as soon as practicable including making themselves and the children available to meet with the Therapist.

3The parties excluding the First Respondent contact the Therapist within 7 days for the purpose of making an intake appointment.

4The Second Applicants, [MR TIFFT] and [MRS TIFFT] are to facilitate the children engaging with the Therapist as directed by the Therapist.

5The parties and Independent Children's Lawyer be at liberty to provide to the Therapist a copy of any relevant court documents including a copy of the report of [Dr W] filed 26 October 2017 and a copy of these orders.

6The costs for the Therapist be shared equally between the parties excluding the First Respondent including any report requested of the Therapist by the Independent Children's Lawyer.

7The matter be listed on 9 August 2018 at 9.30 am, for monitoring.

8Further to paragraph 6 above the Independent Children's Lawyer obtain a report from the Therapist on the progress of family therapy including but not limited to seeking recommendations from the Therapist for ongoing time between the children and the Second Respondents, [MR S THWAITE] and [MS ALPORT] and the Third Respondents, [MR ANDERSON] and [MS ANDERSON] based on the children's best interests.

9The parties and the Independent Children's Lawyer have liberty to have the matter relisted at short notice in relation to the operation and implementation of these orders.

10The parties and the Independent Children's Lawyer be restrained and an injunction is hereby granted restraining each of them from making any complaint to a professional body or association concerning the conduct of the Therapist or concerning the content of any report by the Therapist or permitting any other person to do so without first obtaining leave of the Court.

11Each party should meet his or her own costs of these interim proceedings.

12The Form 2 Application filed by the Second Respondents on 2 February 2018 be dismissed.

13The Form 2A response filed by the Third Respondents be dismissed.

14The form 2A response filed by the First Respondent, stand adjourned generally.

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

RM

ASSOCIATE

10 APRIL 2018