TYRRELL and MANCE

[2017] FCWA 90

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: TYRRELL and MANCE [2017] FCWA 90

CORAM: O'BRIEN J

HEARD: 24-25 MAY 2017

DELIVERED : 7 JULY 2017

FILE NO/S: PTW 6017 of 2014

BETWEEN: MR TYRELL

Applicant

AND

MS MANCE
Respondent

Catchwords:

PARENTING - where the Applicant seeks equal shared parental responsibility and equal time in relation to both children - where the Applicant is the biological father to one of the children - where the presumption of equal shared parental responsibility does not apply - where the Applicant's relationship with only one of the children is positive - where the Applicant has a significant history of drug and alcohol issues and violence - turns on own facts.

Legislation:

Family Court Act 1997 (WA)
Interpretation Act 1984 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant: Self-Represented Litigant

Respondent: Self-Represented Litigant

Independent Children's Lawyer : Ms M Chape

Solicitors:

Applicant: Self-Represented Litigant

Respondent: Self-Represented Litigant

Independent Children's Lawyer : Mary Chape Lawyers

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

McCall & Clark (2009) FLC 93-405

Re C and D (1998) FLC 92-815

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

Introduction

1[Mr Tyrell] (“the father”) and [Ms Mance] (“the mother”) are unable to agree the arrangements to be made for the care of [Child A], born [in] 2011, and [Child B], born [in] 2013.

2Child A is the mother’s child from a previous relationship. Child B is the child of the parties. The parties commenced their relationship when the mother was pregnant with Child A. Child A does not know his biological father.

3The parties’ relationship began in late 2010. On the mother’s case it ended in January 2013; on the father’s case the relationship continued until mid-2014. The parties did not marry and there is a dispute between them as to the extent to which they cohabited during their relationship. For reasons which will become apparent, nothing turns on that dispute.

4Since the relationship ended, the children have lived with the mother. The children presently spend time with the father each Saturday and Sunday from 9.30 am until 12.30 pm, pursuant to interim orders made on 7 August 2015.

5The present proceedings were commenced by the father by application filed on 13 January 2015. There had been previous proceedings between the parties, commenced when the mother filed an application on 15 October 2014 seeking a finding that the parties are Child B’s parents and a consequential declaration in relation to her entitlement to child support for him. The requested finding and declaration were made on 27 November 2014 without opposition by the father.

The proposals of the parties

6The father had filed a minute of final orders sought on 10 February 2017. The primary orders sought by him in that minute may be summarised as follows:

(1)He sought “guardianship” of Child A;

(2)He proposed that both children live equally with each parent, on a week about basis;

(3)He sought various orders in relation to special occasions, the exchange of information between the parents and handover;

(4)He sought orders whereby the parent not having the care of the children would communicate with them between 5.00 pm and 7.00 pm both Saturday and Sunday;

(5)He sought various orders in relation to the children’s passports;

(6)He sought what he termed “rectification” of the order in relation to child support made on 27 November 2014 and orders regarding the children’s schooling and other education expenses; and

(7)He sought a declaration by the court that the parties “have and where (sic) in a de facto relationship status”.

7At the commencement of the trial the father significantly amended the relief sought by him. He proposed that the parties have equal shared parental responsibility for both children, that the children live with the mother and that they spend time with him each alternate weekend from Friday afternoon until 6.00 pm on Sunday. He further proposed that both children spend time with him for half of all school holiday periods.

8The father acknowledged that while the minute he filed on 10 February 2017 sought orders in relation to child support, there was no formal application before the court in that regard. He acknowledged also that he had not appealed against the order made on 27 November 2014 which he now sought to have “rectified”. I explained to him that as there was no proper application before the court in relation to child support issues, those matters would not be dealt with.

9The father also clarified the purpose of his request that the court make a finding that the parties were in a de facto relationship. He sought only to address his contention that the children had been effectively co-parented by the parties for a significant period both before and after the date on which the mother says their relationship ended. He did not suggest that the requested finding was sought for any other reason.

10The mother had filed a minute of final orders sought on 13 March 2017. The relief sought by her in that minute may be summarised as follows:

(1)That the parties have equal shared parental responsibility for Child B, but that she have sole responsibility for decisions regarding his education;

(2)That she have sole parental responsibility for Child A;

(3)That Child A spend time with the father only in accordance with the child’s wishes;

(4)That Child B spend time with the father only in accordance with Child B’s wishes and as agreed, but in the absence of agreement every second Saturday from 10.00 am to 3.00 pm, with telephone communication every Tuesday or Thursday for a period of 15 minutes in the evening;

(5)That Child B spend time with the father on certain special occasions;

(6)She sought various orders in relation to Child B’s passport and to facilitate her travelling on holidays with the children;

(7)She sought specific orders in relation to handover arrangements, extracurricular activities and the provision of information between the parents;

(8)She sought orders requiring the father to enrolling in and complete the Mums and Dads Forever program and psychological assessment;

(9)She proposed that a mutual non-denigration injunction be made;

(10)She sought orders in relation to the payment of education expenses; and

(11)She sought an order that she have “permission to relocate to the South-West of Western Australia in the year of 2017” and consequential orders about the father’s time with Child B.

11Again, I explained to the mother that there was no proper application before the court in relation to child support issues and that matter would not be dealt with.

12The mother acknowledged that she had presented no evidence or proposals to support the application for permission to relocate. It became clear that she had no specific plans in that regard. She acknowledged also that the issue had not been raised, at least in any formal sense, until the filing of her minute on 13 March 2017. I explained to her that in the absence of any application, evidence or proposals, orders permitting relocation would not be made.

13By the conclusion of the trial the mother had amended her position in relation to the issue of parental responsibility. She sought sole parental responsibility for both children.

14The preliminary position of the Independent Children’s Lawyer (“ICL”) at the commencement of the trial was that it would not be in the best interests of the children for the parties to have equal shared parental responsibility, notwithstanding the mother’s application in that regard. Against the background of various matters raised in the evidence, and the father’s refusal to accept or follow the recommendation of the Single Expert Witness (“SEW”) that he undergo psychological assessment, she could not recommend that the children spend overnight time with him. Notwithstanding Child A’s age, she supported the proposition that any time he might spend with the father should be in accordance with his wishes. Otherwise, her preliminary proposal was that Child B spend time with the father each weekend for one five to six hour block, progressing to an eight hour block, rather than two separate three hour blocks pursuant to the existing interim orders.

The evidence at trial

15The father relied on:

(1)his case information affidavit filed on 13 January 2015; and

(2)his trial affidavit filed on 10 February 2017.

16He did not call any witnesses.

17The mother relied on:

(1)her case information affidavit filed on 11 February 2015;

(2)her trial affidavit filed on 30 January 2017;

(3)her supplementary affidavit filed on 13 March 2017;

(4)her further supplementary affidavit filed on 21 April 2017;

(5)the affidavit of the child care manager [Ms C] filed on 30 January 2017; and

(6)the affidavit of her mother [Mrs Mance] also filed on 30 January 2017.

18While the father had not given notice of any intention to cross-examine the mother’s witnesses, they were available for cross-examination at the request of the ICL.

19The affidavit of the SEW, Adam Peaty, annexing his report was in evidence. Mr Peaty presented for cross-examination.

20Documents produced by the West Australia Police and the Department for Child Protection and Family Services (“DCPFS”) had been made available for inspection by the parties earlier in the proceedings and were received into evidence without objection. Similarly, the conference memorandum prepared by the family consultant following a case assessment conference on 24 March 2015 and subsequent memoranda dated 3 July 2015 and 10 July 2015 were in evidence. The family consultant was not required by either party or the ICL to attend for the purposes of cross-examination.

The parties as self-represented litigants

21As the parties were both self-represented, I explained various matters to them at the commencement of the trial so as to ensure that they properly understood the process.

22I 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. I explained to them the importance of cross-examination and the likelihood that evidence that was not challenged on cross-examination would be accepted.

23I 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.

24I explained 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 confirmed my earlier explanation 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 ensure as far as possible that the best information was before the court to allow parenting orders in the children’s best interests to be made, but that they would not be permitted to spend time on matters that were irrelevant to the issues.

25I explained that the formal rules of evidence did not apply other than in certain limited and specific circumstances.

26I ensured that both parties had the handbook prepared by the court for the assistance of self-represented litigants in parenting matters. By that mechanism, the relevant law had been drawn to their attention.

27I also explained my obligation to attempt to clarify the substance of each party’s submissions, so as to ensure that I properly understood their cases as they wished them to be put. I emphasised the need for them to focus both in evidence and in submissions on the children’s best interests as being the paramount consideration. I reminded them that I was not bound by their specific proposals and that it was open to me to consider making other orders if I determined those to be in the best interests of the children.

28I am satisfied that the trial proceeded in a manner which afforded procedural fairness to both parties.

Observations as to the oral evidence at trial

29The father was an unimpressive witness. He presented as resentful and belligerent, lacking in insight, and unapologetic for any inappropriate behaviour or failure to comply with court orders. When challenged on his evidence or his actions, whether in cross-examination or by me, the father’s demeanour was abrupt to the point of condescension. He focused almost exclusively on what he perceives to be his rights as a parent. When questioned about his actions, he had difficulty in distinguishing between perceived entitlement and appropriateness.

30He had, during the course of the proceedings, refused to provide his home address to the SEW, insisting that Mr Peaty contact him while en route to his home in order to be given the address only at that stage. His explanation for that approach was both strange and unconvincing.

31He was also prone to giving dismissive and reactive, rather than considered and truthful, answers to questions. By way of one example only, he was asked why he was late to collect the children on a specific occasion only a few weeks before trial. His initial response was, “could have been a number of reasons...could have been mechanical problems with the car”.

32When pressed by me, he agreed that while he often returns the children late, he had only been late to collect them on a very few occasions and only once recently. When I suggested he try harder to remember why he had been late on the identified occasion he said “possibly just needed to get fuel. Could’ve been traffic”.

33When I suggested he consider his answer more carefully, given that he had offered three different explanations, he settled on “traffic”, after initially seeking to argue with me as to the definition of “lateness”.

34The report of the SEW would suggest that the father demonstrated similar tendencies in his interview. Mr Peaty reported that when asked about certain Violence Restraining Order (“VRO”) offences, the father said that they were “news to me” and “would have been text messages or missed calls”. Later in the interview, the father is reported as having “advised that the alleged breaches of the VRO occurred when the VRO had just been served and he thought that the Family Court arrangements overrode the VRO conditions”. That is clearly inconsistent with the proposition that the alleged breaches were “news to him”.

35The mother was somewhat terse and defensive in her answers to questions from the father, but no more than might reasonably be expected in circumstances where she was being cross-examined by a self-represented former partner. She was more open and direct in her answers to questions put by the ICL. Her evidence was broadly consistent with the independent evidence available to the court.

36To the extent that the evidence of the parties conflicted, I preferred the evidence of the mother.

37Ms C gave her evidence in a straightforward and direct manner when briefly cross-examined by the father. I accept her evidence.

38The children’s maternal grandmother, Mrs Mance was somewhat hesitant in answering questions from the father. It appeared that she disliked him and was suspicious of the purpose behind some of his questions. Nevertheless, she was reasonably straightforward in her answers both to questions from him and from the ICL. I regarded her as an honest witness.

39Mr Peaty was cross-examined only briefly by each of the parties. He gave his evidence in an open, straightforward and professional manner.

The law

40The parties were not married. The proceedings fall to be determined pursuant to the provisions of the Family Court Act 1997 (WA) (“the Act”).

41In deciding whether to make a particular parenting order, I am required to regard the best interests of the relevant child as the paramount consideration.

42Section 85 of the Act provides that a parenting order in relation to a child may be made in favour of a parent of the child or some other person. The fact that the father in these proceedings is not Child A’s biological father is therefore no obstacle to parenting orders being made in his favour if appropriate.

43Section 70A of the Act is in the following terms:

70A. Presumption of equal shared parental responsibility when making parenting orders — FLA s. 61DA

(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in —

(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

(b)family violence.

(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

44The presumption required to be applied is that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. In the present case, therefore, the presumption, if it is to apply, will apply only in relation to Child B.

45Regardless of the application or otherwise of the presumption, if an order for the child’s parents to have equal shared parental responsibility is to be made, I am required to consider whether the relevant child spending equal time with each parent is in that child’s best interests and whether such an arrangement would be reasonably practicable. If so, I am then required to consider making such an order.

46Against the background of an order for the child’s parents to have equal shared parental responsibility being made, if I do not make an order for the relevant child 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 that child’s best interests and reasonably practicable. If so, I am required to consider making such an order.

47As is the case with the statutory presumption, the consideration of equal time or substantial and significant time is mandated only in relation to the relevant child’s parents. In the present case, therefore, that consideration is mandated only in relation to Child B and even then, only if an order for equal shared parental responsibility is to be made in relation to him.

48While neither party now seeks orders for Child B to spend either equal time or substantial and significant time with the father, nevertheless if an order for equal shared parental responsibility is to be made in relation to him I must undertake the decision-making process in the manner required by the legislation.

49In determining what is in each child’s best interests, I am required to consider the matters set out in s 66C of the Act. 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.

50I am required also to be guided by the objects of the Act and the principles underlying them.

51Notwithstanding the distinctions drawn above between the mandated decision-making process in relation to Child B, and the decision-making process in relation to Child A, there is no distinction between the two children in terms of what orders may be made in relation to parental responsibility for them, with whom they live, and with whom they spend time and communicate provided the orders are in their best interests. In determining what orders are in the children’s best interests, the biological parent “does not stand in any preferred position”: Re C andD (1998) FLC 92-815 at [10.10].

The issue of parental responsibility

52The first issue for determination is whether the statutory presumption of equal shared parental responsibility applies in relation to Child B. For the reasons already noted, it does not apply in relation to Child A.

53The statutory presumption does not apply if there are “reasonable grounds to believe that a parent of the child… has engaged in family violence”.

54The words “reasonable grounds to believe” are not unimportant; they fall well short of any requirement for proof of family violence.

55Family violence is defined in s 9A(1) of the Act as “…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” (original emphasis).

56On the father’s case, the mother was a “member of [his] family” as defined in s 6 of the Act.

57Section 9A(2) of the Act sets out a non-exclusive list of examples of behaviour which may constitute family violence, in the following terms:

(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.

58The mother gave evidence of behaviour on the part of the father that meets the definition of family violence. I accept that evidence.

59The report of DCPFS dated 3 December 2015 advised of seven domestic violence incident reports being received in the period between October 2012 and June 2015, including an incident involving the parties “pushing and shoving each other”.

60The detailed incident reports produced by the Western Australia Police recount numerous complaints about behaviour on the part of the father which, if accurate, would constitute family violence.

61The father was served with a VRO for the protection of the mother on 22 August 2014. That order prohibited him from communicating with the mother by any means whatsoever, including SMS or text messages.

62On 27 August 2014 the father sent the mother two text messages and attempted to telephone her on 11 separate occasions over a period of less than two hours. He was arrested on 31 August 2014, charged and remanded in custody. He was convicted of 13 breaches of the VRO.

63The behaviour alleged is consistent with, though not as serious as, the father’s conduct towards a former partner, [Ms W], with whom he had a daughter [Child C], born [in] 2006. Documents produced by DCPFS in relation to that relationship and Child C were in evidence. The father was convicted in 2004 of a serious assault on Ms W and deprivation of liberty. He received a 12 month suspended prison sentence for the assault and a two year Intensive Supervision Order for deprivation of liberty. Child C was taken into care by DCPFS in March 2007 following an incident in which her head was hit against the side of a cot whilst being handled by the father. She was placed with her maternal grandmother. The father’s contact with Child C was suspended by the Department in early 2012 due to his behaviour. The relationship between the father and Ms W was described by DCPFS as having a “chronic history of severe domestic violence including physical, emotional, verbal, sexual, financial abuse and social isolation”.

64On 7 May 2012, the time-limited protection order for Child C was revoked and a protection order was made to remain in place until she reaches the age of 18.

65I am satisfied that there are reasonable grounds to believe that the father has engaged in family violence.

66The statutory presumption of equal shared parental responsibility, therefore, does not apply.

67The issues of parental responsibility for each of Child A and Child B fall to be determined in any event by reference to the considerations which inform the determination of what parenting orders are in their best interests.

The primary considerations

68The court is required to consider “the benefit to the child of having a meaningful relationship with both of the child’s parents” as a primary consideration. While the father is not Child A’s parent, the court is also required to consider the nature of the relationship of the child with each of the child’s parents, and other persons, and any other fact or circumstance that the court thinks is relevant. It is convenient, therefore, to consider together both the nature of the father’s relationships with each of Child A and Child B, and the benefit to each of them of having a meaningful relationship with him.

69In doing so, it must be remembered that there is no presumption that a particular relationship will be “meaningful” nor that it will be to the benefit of the child.

70As the Full Court observed in McCall & Clark (2009) FLC 93-405 at [120] and [122]:

In our view if the legislature intended to elevate the benefit to a child of a meaningful relationship to a presumption it would have said so in clear and unambiguous language.

…

…the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child's best interests.

71While the father’s affidavit material did not address the nature of his relationship with Child A and Child B in any direct fashion, it is clearly his case (and his belief) that he has a meaningful relationship with each of them, and that the maintenance of that relationship is to their benefit.

72The mother’s evidence is to the contrary. She says that Child A calls the father by an abbreviated version of his given name “because he does not think of [the father] as a father”. She says Child A is “often angry, upset, and moody and lashes out afterwards after” seeing the father, that he does not want to see the father and often refuses to speak with him on the telephone. She says that Child A “has no emotional bond with [the father], as a dad”, and that the father’s behaviour has caused Child A emotional and behavioural problems.

73Child A has been attending therapy with a clinical psychologist, [Ms B], since September 2016. A report from Ms B dated 20 April 2017 was annexed to the mother’s affidavit filed the following day. Unfortunately, Ms B was not called as a witness either by the mother or by the ICL, notwithstanding the content of that report and the fact that she is Child A’s treating psychologist. The weight to be attached to her report, accordingly, must be tempered by an acknowledgement that she was not available to the father for cross-examination.

74Ms B describes Child A as engaging well in therapy but said that “like most children his age, he will avoid discussing any events or people that are predominantly connected with uncomfortable feelings, including events or people that are frustrating, sad, scary, or anxiety provoking”.

75Ms B reported:

During the first session when a history was taken, [Child A] was asked about members of his family and people in his life. Notably, when [Child A] was asked about [the father], he responded with “I don’t like him” and did not discuss [him] any further. This has been a feature of our therapy sessions: [Child A] will openly discuss the people and events in his life during sessions, but [the father] is notably absent from his dialogue.

Another session in September 2017 followed an incident where [the father] reportedly arrived at the school unannounced. While [Child A] did not discuss the event with me, during our session he drew a stick figure of a man on the board and drew a box around it ([Child A] chose to draw a picture when asked what he would like to do). When asked what his picture was, [Child A] informed me it was a “scary man” with a mask, and asked me to write “pre-primary” above the box. I asked for further details about what was happening, and [Child A] informed me “it’s [the father]” and declined to comment any further.

76The SEW accompanied the father and the children to [a park] to take the opportunity both to observe them together, and to interview Child A. He summarised his observations by saying:

During the majority of the observation and other than when he was throwing objects around mimicking [Child A], [Child B] showed a positive relationship towards [the father]. The attitude of [Child A] towards [him] would best be described as moderately responsive at the beginning through to highly defiant and oppositional at the end.

77The father was noted to have brought appropriate food and drink for the children, to have helped them to climb on equipment, and (other than on one occasion when Child B was able to wander off out of sight for a while) to have monitored them closely when they went near the edge of the lake in the playground. After Child A’s interview, the father sat with the children and provided them with a snack. When it came time to get ready to leave, Child A began purposely throwing things away and delaying the process and Child B began mimicking Child A. The SEW described the father’s responses as being appropriate, but noted that Child A was openly aggressive and trying to hurt the father by punching him. When the father went to attend to Child B, who was also being unruly, Child A grabbed the father’s sunglasses, sat away from the father and then “intentionally and completely destroyed” the sunglasses, showing further aggression towards the father when he tried to stop him.

78The SEW said that it took a couple of minutes of the father “having to physically hold Child A in a seated position for Child A to de-escalate his anger towards [him]”. Child A was then openly resistant and defiant to the father, before settling into a sullen demeanour.

79Mr Peaty noted that the father did not lose his temper and remained calm and focused.

80He summarised his observations of the children’s relationships with the parties as follows:

[Child A’s] relationship with [the mother] is positive. He has a strong connection to her and views her as a person who provides security for him. [Child A’s] relationship with [the father] seems a variable. He has a connection to [the father] due to [him] having been involved with [Child A] over the years since his birth. However the connection does not seem to be positive in terms of [Child A’s] attitude towards [the father] and his wishes about spending time with [him]. When the writer observed [Child A] with [the father] during a contact visit, the theme that seemed most prevalent from [Child A] was ambivalence and then resistance towards [him]. For part of the visit he showed open hostility towards [him] well beyond what would normally be expected from a child of that age towards a significant adult in their life.

[Child B] appears to have a positive relationship with [the mother]. He has a strong connection to her and views her as a person who provides security for him. His relationship with [the father] seems to be positive and quite strong. He appears to enjoy spending time with his father.

81The mother proposes that Child B continue to spend regular time with the father, and until late in the trial proposed that the father have equal shared parental responsibility for him. I infer that she considers him to have a meaningful relationship with the father, and that it would be in his best interests for that to continue. The independent evidence supports a conclusion that his relationship with the father is meaningful to Child B.

82The position in relation to Child A is more difficult. Such evidence as there is does not support a conclusion that his relationship with the father is either meaningful or positive. The relationship is at best problematic and at worst negative. The observations of Ms B are not inconsistent with the observations of the SEW; as already noted it is regrettable that Ms B was not called to give evidence so that those observations could be explored further, and so that her evidence could be tested. In those circumstances, I do not attribute significant independent weight to her observations, while noting their consistency with the other evidence of witnesses who were available for cross-examination.

83I find that Child B has a meaningful relationship with the father, and that subject to some qualifications as will appear below it is in his best interests for that to continue.

84I am unable to find that Child A presently has a meaningful relationship with the father in a positive sense, nor that efforts to develop that relationship would be in his best interests.

85I am required also to consider the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

86There are no concerns about the children being so exposed in the care of the mother.

87The same degree of confidence cannot be expressed in relation to the father. While he is able to cater appropriately for the children’s practical needs when they are in his care, and his self-control and response in challenging circumstances when confronted with Child A’s behaviour in the observed visit at [a park] provide a degree of reassurance, nevertheless he has a documented history of aggression and violence. That is a matter appropriately to be taken into account in considering what orders are in the children’s best interests.

The additional considerations

88On the mother’s evidence, which is unchallenged in this regard, the children have a good relationship with her parents. In his papers for the judge, the father said that the children “have a very strong connection” to the mother’s family.

89It is common ground that the children have very little contact with members of the father’s family. The father would attribute that to the current limitations on the children’s time with him; the mother would say that the father’s own relationships with his family are difficult. Regardless of the reasons, it is clear that at this point at least the children do not have any relationships of significance with members of the father’s family.

90Both parents have, within the context of their dispute, taken the opportunity to participate in decision-making about the children, and to spend time and communicate with them. On the mother’s case she has been primarily responsible for all decisions and care of the children since a very early stage; on the father’s case, he has been as actively involved as his employment circumstances during the relationship, and the dispute between the parties since the separation, permitted.

91It is unnecessary for the purposes of these reasons to determine the factual dispute between the parties in that regard. It is sufficient to note that the father has a strong view as to what he would regard as his parental rights, and a determination to exercise those rights. It must also be noted, however, that the evidence supports a conclusion that there is no realistic prospect of genuinely cooperative co-parenting between these two parties.

92The evidence of the parties regarding their exchanges about the issue of toilet training for Child B provides an illustration of the communication difficulties between them. During a period when Child B was not using pull-up nappies when in the mother’s care, the care of her relatives or at day-care the father was having him use pull-up nappies during their weekend time together. The mother communicated with the father in that regard, asking him to adjust the steps he was taking so they would be consistent with Child B’s routine at all other times. Her communication was appropriate both in content and in tone. The father refused, insisting that the use of pull-up nappies was a valid option and that he as a parent had the right to make that decision during times when Child B was in his care.

93During cross-examination, the father did not appear to see any difficulty with that approach, nor that it may have potential to cause confusion for Child B. Rather, he said that he would take on board information or suggestions from the mother in relation to parenting issues but would make his own decisions. Again, his focus was primarily on what he regarded as being his “parental rights”.

94The SEW expressed pessimism as to the prospect of improved cooperation between the parents, describing the father as “resistant” to any suggestions from the mother or others. That assessment was consistent not only with the father’s presentation at trial, but with his actions as described by the witnesses.

95The mother has fulfilled her obligations to maintain the children. The father presently is assessed to pay child support in the sum of $25.00 per month. He acknowledged under cross-examination that he had not offered to make any additional contribution towards Child B’s maintenance.

96The father’s answers to questions in cross-examination about his current employment circumstances were somewhat evasive. When asked how many hours per week he works his answer was “it depends”. He said that he did not have a present work roster and had not worked in the last fortnight. He contended that $25.00 per month was sufficient to bring up a child and firmly maintained that position even after I questioned him to ensure that he was not confusing that statement with a proposition that $25.00 per month was an appropriate assessment of child support payable on his asserted level of income.

97The evidence does not permit me to make a finding that the father has fulfilled his obligations to maintain Child B. The evasive and inconsistent nature of his evidence in relation to both his employment and his living circumstances lead me to infer that it is more likely that he has avoided those obligations, at least in part.

98I am required by the legislation to consider the likely effect of any changes in the children’s circumstances. In this case, the change proposed by the father is significant. The evidence raises serious concerns as to the effect of that possible change on Child A in particular and does not support any confidence that Child B would cope well with it.

99That said, on either party’s proposals the current circumstances for the children will change. On the mother’s case, Child B would spend time with the father but without Child A. When I questioned her about the possible effect on both boys of such a change, she expressed confidence that they would both cope. She said that if Child A wanted to spend time with the father she would facilitate that.

100The SEW was asked for his views on that issue.

[ICL]:Having read the recent affidavits, do you have any different view of the recommendations you made?…

[SEW]:…I still hold the view that ultimately if [Child A] doesn’t want to go he shouldn’t have to. But part of, as you would have seen, part of my recommendation of him continuing to go was to give some support to the younger child. And part of my thinking is that, is that [Child A] would be old enough to report any major problems or major events. [Child B] now would be getting close to the time where he would be more able to give a little bit more accurate descriptions on things.

[ICL]:Do you have any view on how [Child B] might feel if he does go on his own?

[SEW]:Hard for me to predict. Obviously he was too young to be interviewed and he still is too young to be interviewed. I think you could start it by testing it, having partial visits - [Child A] there for some of the time and not some of the time.

[HIS HONOUR]: How would [Child A] feel if [Child B] goes and is having a great time and [Child A] doesn’t go?

[SEW]:Well, he may want to go but kids can’t always have everything they want.

101There are no relevant practical difficulties or expenses of the children spending time with or communicating with the father such as to influence the orders to be made. There are matters of convenience for each of the parties, including the fact that on the mother’s evidence most of the employment available to her is offered on Sundays, but it is not suggested by either party that much weight should be given to those matters.

102Both parties have an appropriate capacity to provide for the practical and physical needs of the children. I am satisfied that the mother has an appropriate capacity to provide for the children’s emotional and intellectual needs. I have reservations as to whether the same can be said for the father.

103The father’s focus on what he perceives to be his parental rights, and in particular his fierce adherence to the view that he is entitled to make unilateral decisions in the exercise of those rights, when coupled with an apparent inability to recognise the possible adverse effect on the children of that approach, raises concern as to his capacity to meet the children’s emotional needs. The example above of the dispute regarding the appropriate approach to toilet training Child B is but one instance; the evidence regarding the father’s attendance at Child A’s parent teacher night and his attendances at Child B’s day-care centre further reinforce those concerns.

104There are no particular issues arising from the evidence in relation to maturity, sex, lifestyle and background of the children which influence the orders appropriately to be made.

105The father’s background, however, is relevant. While he denies that there was ever any legitimate basis for concern as to his care of his older child, Child C, the fact remains that DCPFS had extensive involvement with the father and his former partner because of serious concerns regarding their care for her. Those concerns arose in the context of alcohol and drug abuse by the father and his former partner and a high level of violence between them. Child C was removed from the care of the father and his former partner when she was only three months old. The materials produced by the Department report non-engagement by the father and a failure on his part to take appropriate steps towards reunification. Notwithstanding his failure to engage appropriately with the Department, he had some contact with Child C but that too was problematic, resulting in reports regarding his conduct which have a striking similarity to reports in the present proceedings.

106The mother has demonstrated an appropriate attitude to the children and to the responsibilities of parenthood. The report of the SEW as to his observations of the father with the children suggests that the father is able to take an appropriately responsive and responsible attitude towards the children when they are in his care. That said, the responsibilities of parenthood extend significantly beyond physical supervision. The father’s consistent approach appears to be to put his own needs and perceived rights and entitlements ahead of the interests of the children. More troubling is his apparent inability to recognise that there might be anything wrong with that.

107Child B is too young to have expressed any meaningful views as to what arrangements are in his best interests or desired by him. Child A has, as already noted, expressed negative views about his relationship with the father, and the desire not to spend time with him.

108Child A, of course, is only six years old. Little weight should be given to his expressed views and wishes per se, in the sense that they should not be in any way determinative of a conclusion as to what orders are in his best interests

109The expression of those views and wishes, however, is a relevant component of the assessment of the nature of his relationship with the father, whether that relationship is or could be meaningful and beneficial, and whether orders seeking to compel a continuation of that relationship are in his best interests.

110I reject the suggestion by the mother that an order should be made effectively empowering Child A to decline time with the father as and when he chooses; in my view, the better approach is to compel the mother to facilitate Child A spending time with the father if he expresses the wish to do so. I draw that distinction as it is in my view essential that Child A continue to receive the therapy which is still in its relatively early stages, and acknowledging the possibility or even likelihood that his views and wishes may change both with the passage of time, and if he perceives that Child B is enjoying time with the father.

111In making that observation, I have taken into account the desirability where possible of making orders that would be less likely to lead to the institution of further proceedings; in short, that which is desirable is not always possible.

Conclusion – parental responsibility and time

112For all the reasons outlined above, I conclude that it is not in the best interests of either child for the parties to have equal shared parental responsibility for either of them. There is simply no reasonable prospect of these two parties cooperating in the manner contemplated by the legislation to make joint decisions about major long-term or indeed any issues.

113I conclude that, at present at least, it is not in Child A’s best interests to spend time with the father. I repeat my earlier disquiet that more detailed evidence from Child A’s psychologist was not before the court. I propose to make orders which will require the mother to continue to facilitate Child A receiving the appropriate therapy. While I am satisfied on the evidence presently available that continuing to compel Child A to spend time with the father is not now in his best interests, I cannot foresee how that might change in the future, or how Child A will be affected by an arrangement whereby Child B spends time with the father but he does not. Child A has expressed a desire to know more about his biological father and is acutely aware that the applicant is not that person. The management of that issue as Child A gets older will present a difficult challenge for the mother and it is in my view essential that she and Child A receive appropriate professional help in that regard.

114I regard it as being in Child B’s best interests at this stage to continue to spend regular time with the father. In my view, it is inappropriate at this time for that arrangement to be as extensive as proposed by the father. His background and history, coupled with both his lack of insight and his behaviour give me no confidence that a progression to overnight time is appropriate at this stage.

115One of the few things upon which the parties could agree is that the present arrangement whereby the father spends three hours with the children on each of Saturday and Sunday each week is unsatisfactory. From the father’s point of view, three hours is an insufficient period of time to give him flexibility and choices in the activities in which he engages the children. His response has been to have a singularly cavalier attitude to complying with the existing orders and to be dismissive of the mother’s requests that he be punctual. From the mother’s point of view, the current arrangements impinge on her employment options not only because of the father’s unreliability, but because they entail a commitment on her part on both days of every weekend.

116In my view, it would be preferable for Child B to spend a single longer period with the father each weekend.

Conclusion – other matters raised by the parties

117In addition to the central issues of parental responsibility and the time the children should spend with each parent, both parties sought a range of other orders. While they did not reach any agreement in relation to those additional orders, in some respects there was common ground.

118Both proposed that the father should be provided with relevant information about Child B, both in terms of medical information and information regarding his education. The father proposed that he should also receive that information in relation to Child A. Bearing in mind my observations earlier in these reasons as to the possibility of it becoming desirable in the future for Child A to spend time with the father, it is in my view appropriate that the father receive updating information regarding both children. At best, that will keep him informed about Child A and give him the information he would need to try and develop a better rapport with him in the future; at worst, it will ensure that in his interaction with Child B he is also up-to-date about what is happening in his sibling’s life. I therefore regard it as being in the best interests of both children that the father be kept informed about the progress of each of them.

119Both parties proposed that the father should have telephone communication with Child B on a regular basis and I propose to make orders to facilitate that.

120Both parties proposed orders which would ensure that Child B saw his father on Christmas Day, Easter Sunday, Father’s Day, Child B’s birthday and the father’s birthday each year. The father’s proposals were non-specific, seeking only “fair and reasonable” time. The mother’s proposals were more precise and I propose to make orders broadly in terms of them, albeit extending somewhat the time which she proposed for Father’s Day.

121Both parties proposed that passports be issued for both children. They differed in their proposals as to by whom the passports should be retained. Given my other findings, it is appropriate for both passports to be retained by the mother.

122The mother sought orders which would enable her to take both children out of Western Australia and the Commonwealth of Australia for the purposes of holidays, on certain terms. While the father’s documents were silent in that regard, as already noted he agrees that the issue of passports for the children is appropriate. It may be inferred that he agrees also that they should have the opportunity of overseas travel. I propose to make orders broadly in the terms sought by the mother.

123Both parties agreed that clear arrangements for handover need to be in place. I propose to make orders continuing the present handover arrangement, subject only to any agreement between the parties as to a different arrangement.

124Both parties sought orders in relation to child support and associated issues. For the reasons outlined at the commencement of this judgment, I do not propose to make the orders sought.

125The father proposed an order restraining each party by injunction from approaching the other during “their off-custody period”. No evidence was led in support of that application and it was not agitated at trial. I do not propose to make the requested injunction.

126The father also proposed that “recovery orders be attached to all final orders made in the event either party fails to comply”. It was not entirely clear why he sought an order in those terms, given that the evidence clearly established, and he admitted, that he is the party regularly failing to comply with the existing interim orders. In any event, the matter was not agitated at trial and such an order is inappropriate absent very specific circumstances, which are not present in this case.

127The father asked that the court make a finding that the parties “have and where (sic) in a de facto relationship status”. No evidence was lead to permit the necessary findings, bearing in mind the definition of a de facto relationship in s 13A of the Interpretation Act 1984 (WA). The matter was not agitated at trial and I do not propose to make the finding requested.

128The mother sought an order that the father attend the Mums and Dads Forever program offered by Anglicare. That had been previously recommended by both the SEW and the ICL; the father took no steps to comply with that recommendation as he saw no need to. It became clear during the trial that the father’s view in that regard was based on his inaccurate assumption as to the nature of the course in circumstances where he had not made any enquiries about it. While it may still be that even if he makes those enquiries the father’s view will not change, in my view it is appropriate for him to undertake the course. I propose to order him to do so, in the hope that he might gain some benefit and insight into steps which can be taken to facilitate co-parenting and communication.

129While of course the determination of any future application by either party will be a matter for the sole discretion of the Judicial Officer who hears it, the father should anticipate that a failure to comply with my order to undertake the course might be a matter to which attention would be drawn in the context of any such application.

130The mother sought an order that the father undergo psychological assessment and “provide resulting documentation” to the court. That is an application which might have been more properly agitated on an interim basis, either by the mother or by the ICL, but it is of no present utility. While the ICL supported the mother’s proposal, she did not persuade me that the court has the necessary power to make such an order other than in the context of ongoing proceedings.

131I do not propose to make the order sought. Again, the father should not misunderstand that decision; should there be further proceedings between the parties in relation to these children it is in my view likely that the court would benefit from a psychological or psychiatric assessment of the father, in determining what outcome might then be in the best interests of the children.

132The mother sought an order permitting the children to be transported for the purpose of handover by her parents if she is unavailable. That is a practical and sensible proposal and I will make the order sought.

133The mother also sought an order requiring the father to take Child B to scheduled extracurricular activities while in his care. Again, that can only be to Child B’s benefit and I propose to make the requested order.

134The mother sought an order that the father not attend Child B’s school assemblies or similar “unless invited by [Child B]”. Child B is not yet four years old. It is not appropriate to pre-emptively empower him to decide whether or not his father attends school functions. That is a matter to be dealt with between his parents on an ongoing basis. I decline to make the order sought.

135The mother sought an injunction restraining each of the parties from denigrating the other to or in the presence of the children; I regard such an order as being in the best interests of the children.

136As already noted, no proper evidence was led in support of the mother’s application for orders which would permit her to relocate to the south west of the State at some unspecified time this year. As foreshadowed at the trial, I do not propose to make any such order.

Proposed orders

137Subject to any submissions as to form, I propose to make the following orders:

1.The Respondent, [Ms Mance], have sole parental responsibility for the children, [Child A], born [in] 2011, and [Child B], born [in] 2013 (“the children”).

2.The children live with the Respondent.

3.[Child B] spend time with the Applicant, [Mr Tyrell], as follows:

(a)each Saturday from 9.00 am to 4.00 pm;

(b)each Father’s Day from 9.00 am to 4.00 pm;

(c)for three hours on each of the father’s birthday and [Child B’s] birthday each year;

(d)from 1.00 pm until 4.00 pm on Christmas Day in 2017 and each alternate year thereafter;

(e)from 9.00 am until 12.00 noon on Christmas Day in 2018 and each alternate year thereafter;

(f)from 9.00 am until 12.00 noon on Easter Sunday in 2018 and each alternate year thereafter; and

(g)from 1.00 pm until 4.00 pm on Easter Sunday in 2019 and each alternate year thereafter.

4.The Respondent do all things necessary to facilitate [Child B] communicating with the Applicant by telephone on Tuesday and Thursday afternoon each week, with the Respondent to initiate the call at any time between 5.00 pm and 7.00 pm.

5.For the purposes of [Child B’s] time with the Applicant pursuant to the order contained in paragraph 3 above, all handovers take place at McDonald’s in [Suburb A] unless otherwise agreed in writing between the parties, and the Respondent be at liberty to have handover facilitated by either or both of her parents if she is unavailable.

6.The Applicant do all things necessary to ensure that [Child B] attends his regularly scheduled extracurricular activities during time spent with him pursuant to paragraph 3 of the orders above.

7.The Applicant promptly sign and return to the Respondent any documents sent to him to facilitate the issue and renewal of passports for the children and provide all necessary consents in that regard.

8.The Respondent have liberty to remove the children from the State of Western Australia and/or the Commonwealth of Australia for the purpose of holidays on the following conditions:

(a)that she give the Applicant no less than 30 days’ notice of her intention to do so;

(b)upon the giving of that notice, the operation of the order contained in paragraph 3 above is suspended for the duration of the proposed holiday;

(c)upon her return from the proposed holiday, the Respondent is to comply with any reasonable request made by the applicant to spend time with [Child B] to make up for the time suspended; and

(d)when giving the requisite notice, the Respondent must also provide the Applicant with a detailed itinerary of the proposed holiday including dates of departure and return, and telephone contact details for the duration of the holiday.

9.The Respondent is to keep the Applicant informed of any significant medical information in relation to both children.

10The Respondent is to do all things necessary to ensure that [Child A] continues to receive such therapy as may be recommended by his current treating psychologist, and is to facilitate [Child A] spending time with the Applicant and [Child B] together should he express a wish to do so.

11.The Respondent is to give and maintain all necessary authorities and requests to any school attended by either child to facilitate the provision by the relevant school direct to the Applicant of the children’s school reports, relevant notices, and progress reports.

12.Within three months of the date of these orders, and subject to the consent and availability of the service provider, the Applicant is to do all things necessary to enrol in and complete the “Mums and Dads Forever” program offered by Anglicare.

13.Both parties be restrained and an injunction is hereby granted restraining them from:

(a)denigrating the other party to or in the presence of the children or either of them; and

(b)denigrating any new partner of the other party, or any member of the other party’s family, to or in the presence of the children or either of them.

14.All outstanding applications and responses be and are hereby dismissed.

15.All documents produced by named persons pursuant to subpoena be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from this order.

16.In relation to material tendered as an exhibit into evidence in these proceedings and absent the filing of any Notice of Appeal:

(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 today’s date;

(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.

I certify that the preceding [137] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate
7 July 2017