Waters and Read-Lawson

[2015] FCWAM 176

JURISDICTION : MAGISTRATES COURT OF WESTERN AUSTRALIA – 150 TERRACE ROAD

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: WATERS and READ-LAWSON [2015] FCWAM 176

CORAM: KAESER M

HEARD: 9 & 10 FEBRUARY 2015

DELIVERED : 17 AUGUST 2015

FILE NO/S: PTW 5398 of 2012

BETWEEN: MR WATERS

Applicant

AND

MS READ-LAWSON
Respondent

Catchwords:

Child related proceedings; detailed orders sought by both parties; court refused to make orders to micro-manage the parties’ respective parenting; time between child and father increased beyond mother’s proposals (which were found to be overly cautious).

Legislation:

Family Court Act 1997 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr B Hill

Respondent: Self Represented Litigant

Solicitors:

Applicant: Benn Hill

Respondent: Self Represented Litigant

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

Cox v Pedrana [2013] FamCAFC 48

Goode & Goode (2006) FLC 93-286

Jackson & O’Shea [2014] FamCA 72

McCall & Clark (2009) FLC 93-405

MRR v GRR (2010) FLC 93-424

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

Background

1[Mr Waters] and [Ms Read-Lawson] have one child, [K], born [in] 2010. K is in pre-primary in 2015 and attends on a full-time basis. The parties separated in early‑2012 when K was two years of age.

Background to proceedings

2At the start of the trial, both parties sought to rely upon “alternative” minutes of proposed orders. It was clear that each document set out the actual orders each party sought and were not alternatives to some other proposals. The father sought the following orders:

Father’s alternative minute of final orders sought

1.All previous parenting orders be discharged.

2.The father, [Mr Waters], and the mother, [Ms Read-Lawson], have equal shared parental responsibility for the child, [K Waters], born [in] 2010 (“the child”).

3.The child live with the mother.

4.Unless otherwise specified in these orders, until 31 December 2015, the child spend time with the father as follows:

(a)During school terms, on a two-weekly cycle:

i. In the first week, from the conclusion of school on Friday until 5.00 pm Sunday;

ii. In the second week, from 5.00 pm Saturday to the commencement of school on Monday;

(b)During school holidays, from Friday 5.00 pm to Sunday 5.00 pm.

5.Unless otherwise specified in these orders, from 31 December 2015 to 31 December 2016, the child spend time with the father as follows:

(a)During school terms, on a two-weekly cycle:

i. In the first week, from the conclusion of school on Friday until the commencement of school on Monday; and

ii. In the second week, from the conclusion of school on Thursday until the commencement of school on Friday; and

(b)During school holidays, from Friday 9.00 am to Monday 5.00 pm.

6.Unless otherwise specified in these orders, from 31 December 2016, the child spend time with the father as follows:

(a)During school terms, on a two-weekly cycle:

i. During school terms in the first week, from the conclusion of school on Friday until the commencement of school on Monday; and

ii. In the second week, from the conclusion of school on Thursday until the commencement of school on Friday; and

(b)During school holidays, on a week-about basis.

7.The child spend time with the father:

(a)At Christmas:

i. In 2015 and each alternate year thereafter from 5.00 pm on 24 December until 1.00 pm on Christmas Day;

ii. In 2016 and each alternate year thereafter from 1.00 pm Christmas Day until 4.00 pm Boxing Day;

(b)At Easter:

i. In 2015 and each alternate year thereafter from 5.00 pm Good Friday to 3.00 pm Easter Sunday; and

ii. In 2016 and each alternate year thereafter from 3.00 pm Easter Sunday to 5.00 pm Easter Monday;

(c)If the child would not otherwise see her father on Father’s Day, from 5.00 pm on the Saturday before Father’s Day until the commencement of school on Monday;

(d)On the father’s birthday from the conclusion of school until 6.00 pm;

(e)On [K’s] birthday from 2.00 pm to 7.00 pm.

8.The mother spend time with the child:

(a)At Christmas:

i. In 2015 and each alternate year thereafter from 1.00 pm Christmas Day until 4.00 pm Boxing Day;

ii. In 2016 and each alternate year thereafter from 5.00 pm on 24 December until 1.00 pm on Christmas Day;

(b)At Easter:

i. In 2015 and each alternate year thereafter from 3.00 pm Easter Sunday to 5.00 pm Easter Monday; and

ii. In 2016 and each alternate year thereafter from 5.00 pm Good Friday to 3.00 pm Easter Sunday;

(c)If the child would not otherwise see her mother on Mother’s Day, from 5.00 pm on the Saturday before Mother’s Day until the commencement of school on Monday;

(d)On the mother’s birthday from the conclusion of school until 6.00 pm;

9.The parties shall not remove the child’s residence [sic] from the Perth metropolitan area without the prior written consent of the other party.

10.Unless otherwise agreed between the parties in writing, the child attend [P Primary School].

11.Each parent authorise the child’s school to send copies of any reports, notices, newsletters and the like to both parents.

12.Each parent be at liberty to provide a copy of these orders to the child’s school.

13.If handover does not occur at the school, handover occur at the Hungry Jacks restaurant in [Suburb E].

14.If the mother becomes aware of any circumstances whereby she would be unable to care for the child for a period of more than 24 hours, the mother shall contact the father and the child shall live with the father for the period that the mother is unable to care for the child.

15.The father be at liberty to contact the child every second day between 5.30 pm and 6.00 pm by telephoning the mother’s mobile telephone.

16.The mother shall ensure that:

(a)is able to [sic] her mobile telephone is charged and turned on between 5.30 pm and 6.00 pm every second day; and

(b)[K] answers the phone to the father.

17.Each parent authorise the child’s school, daycare, treating medical professional or dental professional to provide duplicate information to the other parent directly.

18.Each parent notify the other of any emergency concerning the child by SMS or telephone call as soon as practicable.

19.Each parent notify the other of any hospitalisation or any medical prescriptions relating to the child.

20.Each parent inform the other if they intend to travel interstate with [K] and:

(a)provide by email a copy of the flight details in and out of WA; and

(b)facilitate telephone communication between [K] and the other parent whilst [K] is out of WA.

21.The parents inform each other and keep each other informed of their current contact details including home address and telephone number they can contact the child on.

22.The mother pay to the father his costs of this application.

23.Any other orders this honourable Court deems appropriate.

3The father’s counsel submitted that the parents are different people and that they have different parenting styles. The father says that the “primary issue” is that the mother is not generally supportive of the father’s relationship with [K]. He also says that she has not gone much beyond the bare minimum times in previous orders and that the progression she is suggesting is too slow.

4The mother sought the following orders in a minute of proposed orders handed up at the commencement of the trial:

Mother’s alternative minute of proposed final orders

Children

1.The parties have equal shared parental responsibility for the long‑term care, welfare and development of the child, [K Waters] born [in] 2010 (“the child”).

2.The child live with the mother.

Father’s spend time [sic]

3.The child spend time with the father, on a fortnightly basis, as follows:

(a) During Week 1 – in 2015, from 9.00 am on Saturday to 4.00 pm on Sunday;

(b) During Week 2 – in 2015, from the conclusion of Pre‑Primary on Monday or 3.00 pm to 5.00 pm; and from the conclusion of Pre‑Primary on Thursday or 3.00 pm to 5.00 pm; and

(c) In June 2016 the addition of The [sic] Friday night Week 1 to 12.00 pm Sunday (Provided [sic] the child is coping well and has her own bed);

(d) Such other times as agreed between the parties in writing.

School holidays

4.During the 2015 and 2016 Term and Summer School Holidays, the father’s Week 2 time be suspended and the father spend time with the child as follows:

(a)On Monday from 9.00 am to Tuesday 4.00 pm;

(b)On Thursday from 9.00 am to Friday 4.00 pm.

Parties’ spend time [sic]

Christmas and Boxing Day

5.During Christmas:

(a)Commencing 2015, with the mother from 5.00 pm on Christmas Eve until 5.00 pm on Christmas Day, and with the father from 5.00 pm on Christmas Day until 5.00 pm on Boxing Day, 26 December;

(b)Commencing 2016, with the father from 5.00 pm on Christmas Eve until 5.00 pm on Christmas Day, and with the mother from 5.00 pm on Christmas Day until 5.00 pm on Boxing Day, 26 December.

New Year

6.During New Year:

(a)Commencing 2015, with the father from 4.00 pm on 31 December 2014 [sic] until 4.00 pm on 1 January 2016, and with the mother from 4.00 pm on 1 January 2016 until 4.00 pm on 2 January 2017 [sic]; and each alternate year thereafter and

(b)Commencing 2016, with the mother from 4.00 pm on 31 December 2015 [sic] until 4.00 pm on 1 January 2017 and with the father from 4.00 pm on 1 January 2017 until 4.00 pm on 2 January 2017, and, each alternate year thereafter.

Easter

7.During Easter:

(a)Commencing 2015, with the mother from 11.00 am on Good Friday until 5.00 pm on Easter Saturday, and with the father from 5.00 pm on Easter Saturday to 5.00 pm on Easter Sunday, and each alternate year thereafter and

(b)Commencing 2016, with the father from 11.00 am on Good Friday until 5.00 pm on Easter Saturday and with the mother from 5.00 pm on Easter Saturday to 5.00 pm on Easter Sunday, and each alternate year thereafter; or

(c)Such other times and dates as are agreed between the parties in writing.

Birthdays

8.On the child’s birthday, with the non-contact party on that day as follows:

(a)If a School day, from the conclusion of School or 3.00 pm to 5.00 pm; and

(b)If a non-School day, for a period of three hours as agreed between the parties or otherwise from 2.00 pm to 5.00 pm on the child’s birthday.

9.On the mother’s birthday/father’s birthday, with the non‑contact party on whose birthday it is as follows:

(a)If a School day, from the conclusion of school or 3.00 pm to 5.00 pm; and

(b)If a non-School day, from 2.00 pm to 5.00 pm on the party’s birthday.

Mother’s Day/Father’s Day

10.On Mother’s Day and Father’s Day:

(a)In the event Mother’s Day falls when the child is with the father, then the child spend time with the mother from 9.00 am to 4.00 pm Sunday on the weekend of Mother’s Day, and the father’s time otherwise be suspended.

(b)In the event Father’s Day falls when the child is with the mother, then the child spend time with the father from 9.00 am to 4.00 pm Sunday on the weekend of Father’s Day, and the mother’s time otherwise be suspended, and

Other times

(c)Such other times as may be agreed between the parties in writing.

Communication

11.Other than in the event of an emergency (where mobile telephone contact should be used) for the purpose of these Orders the parties communicate by way of email or SMS, to a reasonable extent.

12.The parties shall keep each other informed of their telephone contact details, and notify the other party within seven days of any changes to the same.

13.The parties use a communication book to inform each other of any matters regarding the child.

Handover

14.For the purposes of handover as follows:

(a)Week 1 – at the commencement of his time, the father collect the child from [S Park Suburb D] and, at the conclusion of his time, the father deliver the child to [Suburb F Park].

(b)Week 2 – in 2015, at the commencement of his time, the father collect the child from pre-primary and, at the conclusion of his time, the father deliver the child to the [Suburb F Park]; and in 2016, at the commencement of his time, the father collect the child from school and, at the conclusion of his time, the father deliver the child to the [Suburb F Park].

(c)In the alternative, in the event the parties cannot agree, handover to be supervised at Relationships Australia or Anglicare (“the Service Provider”) at the commencement and conclusion of the parties’ time; and

(d)Otherwise, as agreed between the parties in writing.

Residence

15.The parties shall not remove the child’s residence [sic] from the Perth Metropolitan Area without the prior written consent of the other party, or further Order of the Court.

School

16.Each party authorise and direct the School at which the child may, from time to time, attend to provide them with copies of:

(a)Any School reports and access to any portfolio work of the child

(b)Reports on behavioural issues and

(c)Any School circulars or notices concerning functions, parent/teacher nights and other school activities to which parents are invited, as soon as practicable after the same are issued.

17.Each party be permitted to attend significant School activities, presentations and other special events which parents are permitted to attend.

18.The party in whose care the child is in shall be responsible for ensuring that the child attend any scheduled School or agreed extra‑curricular or social activities while the child is in their care.

Medical information

19.Each party provide the other with notice of any significant medical appointments concerning the child.

20.Except in the case of an emergency, or other exceptional circumstances, the child attend [Suburb D Family Medical Centre] for any appointments with her general practitioner, [Dr L], or such other medical centre as agreed by the parties.

21.The parties authorize [sic] and instruct each medical and dental practitioner attended by the child to release to the parties such information regarding the child’s medical and dental health as may be reasonably requested from time to time.

Conduct

22.On a without admission basis, the father be restrained and an injunction be granted restraining him from:

(a)Behaving in an intimidatory, offensive or emotionally abusive manner towards the mother;

(b)Entering, remaining upon or approaching within 100 metres of the mother’s place of residence; and

(c)Entering or remaining in or near the place of study or employment of the mother.

23.On a without admission basis, the parties be restrained by injunction from:

(a)Denigrating or describing in negative terms the other party in the presence or within the hearing of the child;

(b)Denigrating or describing in negative terms the other party’s family members or friends in the presence or within the hearing of the child;

(c)Discussing the proceedings in the Family Court of Western Australia, whether historical or current, with the child, or with any other person in the presence of or within the hearing of the child;

(d)Denigrating or describing in negative terms the other party to any person within the social environment of the child, including but not limited to the parents of the child’s friends, staff and teachers at the child’s school, and the staff and teachers or trainers where the child attends the extra‑curricular activities;

(e)Allowing any third party to engage in any of the actions or conduct described in paragraph 24(a)-(d) above.

Child’s safety when travelling

24.The parties to ensure that the child is secured in the back seat of any vehicle in which she is travelling and the correct safety restraints utilized [sic] as mandated by law, otherwise the child is not to travel in the vehicle.

Other orders

25.The parties to provide reasonable notice of any inability to spend time with the child in accordance with these orders.

26.In November 2015, the parties attend mediation to review the arrangements for the child, and to attempt to agree to any appropriate or necessary changes.

27.The applications of the parties relating to the child be dismissed.

28.Costs.

5Both parties therefore seek a number of progressive orders. Part of the rationale by both parties appears to be that they want to stay out of the Court in future if at all possible. It is clear they have not successfully managed any changes to the current arrangements. The current orders were made on 4 June 2013. They have not been varied since. They provide that K spends time with the father in one week from 3.00 pm to 6.00 pm on Tuesday and Thursday and in the second week from 9.00 am Saturday to 10.00 am Sunday.

6They have different views about what is appropriate in the future. The Court will do its best to put in place orders that will operate for a significant period, but the Court must be satisfied that the orders are in K’s best interests.

7Each party asks the Court to make numerous orders, many of which can be described as “micro‑managing” the other party’s parenting. Whilst keeping K’s best interests in mind as the paramount consideration, I must also consider whether it is the Court’s role to micro‑manage parties’ parenting and behaviour and if so, whether the Court should in this case make such orders. Such an issue was considered in the decision of Berman J in Jackson & O’Shea [2014] FamCA 72 at 130 where his Honour said:

Counsel for each of the parties presented a detailed minute of order [sic] which raise [sic] issues not the subject of evidence or submissions. In a general sense they represent minor matters relating to the time that the child will spend with each of the parties on her birthday, the use of a communication book or other method of appropriate communication between the parties, issues relating to travel both interstate and overseas, health issues and medical treatment, contact details for each of the parties and the care arrangements for the child when she is with each of the parties. I consider that the general evidence is sufficient for me to make the necessary orders but the approach that I have taken is that the parties will have to act responsibly in respect of the child and that these orders ought not have the effect of micro‑managing the care arrangements for the child. Each of the parties has parental responsibility for the day to day care parenting [sic] of the child and it is assumed that they will act in the child’s best interests in relation to decisions made.

8The parties agree that K will live mainly with the mother. The main issue is the time that she is to spend with the father. The mother’s minute of proposed orders provides for a gradual increase in time from one night and two afternoons per fortnight (operating now) to extending to two nights in June 2016. The mother proposes that in holidays in 2015 and in 2016 the father have a single overnight period per week. She includes special days such as Christmas and Easter.

9The father’s proposals start with two nights per week (with different nights in week 1 and week 2 of the holidays). They remain at four nights per fortnight, but move (from 31 December 2015) to three nights in one week and one night in the second week.

10From 31 December 2016 the weekends stay the same but the holiday time increases.

Credibility and witnesses

11In general terms the mother put to the father that she had offered and facilitated times between K and the father during the most recent Christmas school holiday period (which had ended a couple of weeks prior to the trial). The father was vague and only prepared to make limited concessions. An example is that he stated that he had time with K just once out of the six-week holiday period. Upon further questioning, he accepted he also had time on New Year’s Eve. He also later accepted he had been offered more time, but was working and had declined those offers. His evidence on those points was unreliable and difficult to accept as genuine. He appeared to be deliberately vague and tried to present evidence that unfairly painted the mother in a poor light. The father alleged that “[Ms Read-Lawson’s] violent and abusive behaviour continued to increase after [K’s] birth”. The mother put to him that he was in fact referring to his own behaviour rather than hers, which he denied.

12The father gave evidence regarding an incident when he says that the mother attacked him and in self-defence, he grabbed both her wrists and held them until she calmed down. He accepted, in answers to questions from the Bench, that his affidavit said nothing about the mother attacking him. His affidavit goes from stating that she was getting angry to stating that he grabbed her gently by the arms. Re-examination did not shed any further light on this gap in his evidence.

13The father’s evidence was not credible in other respects:

1.When asked about his criminal record he admitted he had a drink driving conviction. When pressed he conceded he also had a conviction for obstructing a police officer. He is hardly likely to have forgotten about it, so I find he attempted to hide that offence.

2.The father received a drink driving conviction in 2006 and he tried to blame that on a lack of food. He was unable to properly accept that, in reality, the high blood alcohol reading that he had on that particular occasion was because he drank too much alcohol. He continued to attempt to blame it on a lack of food.

14The police documents produced pursuant to s 202K were tendered into evidence. They revealed:

(a)The father had an “excess 0.08” offence from 1995; and

(b)Had two convictions in 2006 arising out of the same incident, namely driving under the influence and obstructing public officers (i.e. the police). He was disqualified from driving for six months and received a total of $1,000 in fines.

15The father did however concede that the mother is a good mother. He denied any issues with his temper and denied any violence by him in the past.

16The mother readily conceded in cross examination that:

(a)[K] has a close and loving relationship with the father;

(b)She likes spending time with him;

(c)She sometimes misses her father when she is with the mother;

(d)She says positive things about the father from time to time; and

(e)The father wants to have [K] in his life and that that is a good thing.

17She, however, denied that K enjoys sleepovers at the father’s house. She says that K has told her that she “feels funny” about staying overnight. She also claimed that K is scared of her paternal grandmother.

18The mother also acknowledged that she cannot take everything K says literally.

19Leading into Christmas 2014 the father had proposed overnight time with K from Christmas Day to Boxing Day. He later reduced the actual times, but still proposed the overnight period. The mother would not agree to the overnight period. In her words, “it’s going to be daytime only on Christmas Day from 10.00 am to 5.00 pm”.

20This attitude is difficult to understand as two months earlier the mother had filed a minute of proposed orders for trial that included the following:

With the father from 5.00 pm Christmas Day until 5.00 pm Boxing Day.

21Having filed that minute of proposed orders in October, her email of 16 December 2014 that was tendered into evidence suggested a daytime period only as set out above.

22Her explanation, in her oral evidence, was unsatisfactory. She said that she did not want K to be “exhausted and tired the next morning” [meaning Boxing Day]. She claimed that K would not be able to enjoy the next day [Boxing Day] if she spent the previous night with the father.

23She then claimed that it was her own mother who wanted K at the mother’s home early on Boxing Day to open presents with her. Notwithstanding the mother’s refusal to agree to overnight at Christmas time in 2014, she confirmed that in future she agreed to it. The point here is that the mother did not agree to it when it counted. Despite her proposals, she failed to fully appreciate the benefit to K of having that time with the father and the frustration that the father would have experienced by her changing her view and refusing to agree even though she had actually proposed the overnight period in her documents.

24She further conceded that K had been in her care overnight on Christmas Eve in each year since separation, that is 2012, 2013 and 2014. Despite this, her minute of proposed orders still proposed alternating time on Christmas Eve, but with K’s time continuing to be with the mother on Christmas Eve 2015. Much of her justification for not starting the alternate years in 2015 with the father was that K has a brother, [J], who lives with the mother and she wants them to wake up together on Christmas Day morning. Notwithstanding that, she still proposes alternating periods.

25In my view, there is no sufficient justification for delaying (for yet another year) the commencement of time for K to spend overnight with the father on Christmas Eve.

26In relation to school holiday periods, the mother conceded that if the father were to take time off work from 19 December to 5 January in each year, it would be good for the father to spend extra time with K. During the 2014/2015 school holiday period, however, K only had one or two extra overnight periods with the father during that entire period. The parties otherwise maintained the alternate weekend regime through that period. The mother was specifically asked if she thought that K would have enjoyed extra sleepovers with the father during this holiday period and her response was “no”.

27The mother’s evidence was that maintaining the alternate weekend arrangements during the holiday period was best for K. Her firm view was that K would not have enjoyed any more additional overnight periods with the father.

28In my view, the mother’s proposals do not reflect her actions. Despite agreeing to an overnight period at Christmas time, she refused to put that into effect in reality. I do not accept her concerns about extra overnight periods during the holiday periods. There is no reason why K cannot spend more time with the father on an overnight basis during the holidays. The only evidence of any note is that K has said that she “feels funny”. In my view, that is insufficient to warrant limiting time between K and the father during school holiday periods. That is a time that K should and will enjoy with the father.

29The mother had no difficulty with the father collecting K from school or attending special events at school.

30The mother has not yet disclosed her residential address to the father. Counsel in cross examination made it clear that the father was aware of her residential address and put it to her in direct questions. It was put to her also that the father had never been to her house. Her answer was, “Not that I know of”. It is clear, however, that the father has never attended the property when the mother was there and he has never caused any issue with the mother at that house. He is clearly aware of the address. The above questions were put to the mother in an effort to determine whether handovers could take place at the mother’s home or at each other’s home. In the end, however, each party proposed neutral handover locations. The father lives in [Suburb K]; the mother lives in [Suburb D]. The father proposed handovers (when not at school) at the Hungry Jacks in Suburb E, which is approximately halfway between the parties’ houses. The mother’s proposals involved locations currently being used which are all close to her home. Post separation the father moved to Suburb K.

31In conclusion, where the father’s evidence contradicts the mother’s, unless otherwise stated, I prefer the mother’s evidence.

Father’s witnesses

32The father called [Mr L]. His affidavit filed in September 2014 was relied upon. He is a long‑term friend of the father. He has two children who he sees on alternate weekends. Because their respective weekends match up, they sometimes organise activities together for the three children to enjoy. Mr L was very positive about the father’s parenting and his relationship with K. Nothing of significance arose from the cross examination, so I accept this witness’s evidence.

33The father also called [Ms Waters]. Her September 2014 affidavit was also relied upon. She is the father’s mother.

34Much of her affidavit related to an earlier short‑term separation of the parties. She relayed what the mother told her about her own childhood and her personal history prior to meeting the father. Very little of that evidence was useful for my determination.

35She was (unsurprisingly) supportive of the father’s role as a parent and confirmed K’s good relationship with him. Her opinion (whilst not of much assistance to me) appeared to be consistent with the father’s views (see [98] of her affidavit).

… I do not think [Ms Read-Lawson] has properly considered [Mr Waters’] feelings in all of this and what is really in the best interests of [K].

36Ms Waters was happy to give the mother credit for her parenting and her role in producing such a happy child. She did, however, have an unfortunate habit of answering questions with questions. This was an indication, in my view, of how defensive she was in answering questions from the mother (who was representing herself). She was not prepared to accept any version of events put to her by the mother. She also put hurtful and quite frankly irrelevant material in her affidavit because (she said) that she was trying to understand the mother’s behaviour. She claimed to not bear any ill will against the mother. I accept that comment, but I also find that she is protective of her son to the point where her evidence is coloured by her desire to protect him. She was not, in my view, deliberately avoiding making proper concessions, but she was unable to concede any wrongdoing or criticism of the father.

Mother’s witnesses

37The mother called her own mother, [Ms Read]. She was supportive of the mother and could think of very little positive aspects of the father’s parenting. I accepted her evidence as credible, but it was of relatively little weight.

Law in relation to parenting issues

38These parties were not married so the proceedings fall to be determined under the Family Court Act 1997 (WA) (“the Act”).

39Children’s proceedings are dealt with in Part 5 of the Act. In deciding whether to make a parenting order, I must treat the best interests of the child as the paramount consideration.

40As the Full Court in Goode & Goode (2006) FLC 93-286 said at [72]:

In our view, it can be fairly said that there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with the children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.

41As the High Court of Australia emphasised in MRR v GRR (2010) FLC 93-424 and as the Full Court reemphasised in Cox v Pedrana [2013] FamCAFC 48 the legislation (in s 70A) provides that 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.

42Section 70A(2) provides that:

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.

43Section 70A(4) provides that:

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 Court therefore clearly must apply the presumption unless it does not apply pursuant to s 70A(2) or is rebutted pursuant to s 70A(4).

45Given my preference for the mother’s evidence over the father’s, I find that there are reasonable grounds to believe that the father engaged in family violence during the relationship. The presumption therefore does not apply. I am therefore not obliged to consider equal time or substantial and significant time. I may still find that such time would be appropriate. In this case, however, equal time is clearly not in K’s best interests at the moment nor is it suggested by either party. The father proposes substantial and significant time and I will consider that in due course.

46I have also had regard to the objects of the Act and the principles which underlie those objects. They provide the context in which the above considerations are to be examined and weighed. They are set out below.

47Section 66(1) provides:

(1) The objects of this part are to ensure that the best interests of children are met by:

(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

48Section 66(2) provides:

(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

(d)parents should agree about the future parenting of their children; and

(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”

49To assess what is in the child’s best interests, I must consider the “primary” and “additional” considerations set out in s 66C(2) and (3).

Primary considerations

50The primary considerations are:

(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and

(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

The benefit to the child of having a meaningful relationship with both of the child's parents

51It is clear that meaningful means a relationship that is important, significant and valuable to the child. The Full Court in McCall & Clark (2009) FLC 93-405 made this finding and set out what it considered to be three possible interpretations of this subsection:

(a)One interpretation is that the legislation requires a Court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”);

(b)a second interpretation is that the legislature intended that a Court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents (“the presumption approach”); and

(c)the third interpretation is that the Court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”).

52The Full Court concluded that the prospective approach was preferred, but depending on the circumstances of the case, the present relationship approach may also be relevant. The Court accepted that if only the present relationship approach were followed, the Court would be limited in making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of the trial.

53K should have an ongoing meaningful relationship with both of her parents. This is conceded by the parties. The issue is what progression of time is consistent with her best interests given all of the evidence.

The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

54Amendments were made to the definitions of family violence and abuse which took effect in relation to all cases that commence on or after 5 October 2013. This matter was commenced prior to that date so the previous version of the definition of family violence applies to this matter.

55The definition of abuse that applies to this matter is as follows:

Abuse, in relation to a child, means:

(a)an assault, including a sexual assault, of the child which is an offence under a law, written or unwritten, in force in the State or Territory in which the act constituting the assault occurs; or

(b)a person involving the child in a sexual activity with that person or another person in which the child is used, directly or indirectly, as a sexual object by the first mentioned person or the other person, and where there is unequal power in the relationship between the child and the first mentioned person.

Family violence is defined as:

Family violence means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.

56The note to that provision provides that “a person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.”

57Whilst I am satisfied there was family violence during the relationship directed towards the mother I am not satisfied that K needs to be protected from any such behaviour.

Additional considerations

Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views

58K is too young to express a view that would be of any significant weight to my determination. I dismissed an application to rely upon a report that dealt with the child’s views and provided expert evidence. In my view the fact that the mother sought to rely upon that evidence indicates that she places an improper amount of weight on the child’s views and what the child says about what occurs during the time she is with the father. She is only five years old. In discussions with the mother during the trial she seemed to accept that not everything a young child says can be taken literally. In practice however, I find that she does precisely that, and is unable to accept any other possible explanation for any concerns raised by the child, save and except that the father’s parenting has failed in some way.

The nature of the relationship of the child with:

(i) each of the child’s parents; and

(ii) other persons (including any grandparent or other relative of the child)

59The mother is very close to the child and very protective – perhaps too much ‑ in that her concerns do not appear justified on an objective basis.

60The father has a good relationship with the child, despite very limited time to date. The mother thinks that child cannot cope with more than one consecutive night away from her. I do not share that view. Nothing in the evidence of the mother leads me to such a conclusion.

61At times the child may be grizzly or crying when she returns to the mother’s care. There may be any number of explanations. She may have missed the mother; she may have been having a great time at the father’s and didn’t want to stop; she may have fallen asleep in the car; or she may just be tired.

62The fact that these issues may be occurring does not mean necessarily there is a failing in terms of the father’s parenting or that the time that K spends with him should be limited. That however is the argument the mother makes.

63In cross examination, the mother put to the father that:

the consecutive nights is what’s the main concern for [K] due to her age and ability to deal with the current situation.

64The father’s response was that K seemed fine when she was with him.

65The parties have different perceptions of how K reacts at handover. The mother sees her as sometimes being upset and clingy and thinks therefore that there are issues of concern in relation to the father’s parenting or his relationship with K. The father is blissfully unaware of any such behaviour. He specifically denied ever seeing K upset at handovers in either direction. I do not accept that evidence, as it is highly unlikely that in such a contested matter a child has not been upset at handover even once.

66Children will invariably get upset when leaving one parent’s care and returning to the other parent’s care. It is unrealistic to suggest that this never happened, so either the father, in my view, is tailoring his evidence to suit his purpose or he simply is not sufficiently observant to notice such behaviour. On balance, I prefer the latter explanation.

The extent to which each of the child’s parents has taken, or failed to take, the opportunity:

(i) to participate in making decisions about major long-term issues in relation to the child;

(ii) to spend time with the child; and

(iii) to communicate with the child

67The father has taken every opportunity to spend time with K. He claims he has been “put through the hoops” by the mother’s attitude. I accept that the mother is doing what she thinks is best by restricting the father’s time. I do not however agree with her approach.

68The father has not been able to communicate with K by telephone. The mother will not agree and says that developmentally she is not ready and that it would be disruptive to her routine. This is another example of the mother’s attitude ‑ routine is important but children who have separated parents must get used to new routines. K is starting full‑time school this year – another new routine. Her relationship with the father is just as important as her daily routine and he should be a part of that routine.

The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

69Not applicable.

The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i) either of his or her parents; or

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

70The mother’s proposals do not proceed fast enough. I do not accept that K will be unduly affected by an extension of her current time with the father. I consider that the progression of K’s time with the father should be faster than proposed by the mother, but not as fast as suggested by the father. In my view, K’s best interests lie somewhere between those differing proposals.

The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

71The only relevant issue here is the location of handovers when they do not take place at school. The child attends school near the mother’s home. The father moved to a different location post separation thereby increasing the distance between the parties. In my view, the father should do all of the travelling during school terms, but in holidays it would be appropriate for the parties to meet halfway.

The capacity of:

(i) each of the child’s parents; and

(ii) any other person (including any grandparent or other relative of the child)

to provide for the needs of the child, including emotional and intellectual needs

72I have no difficulty finding that each parent is capable of providing for all of K’s needs. This case is not about the capacity of either parent.

The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant

73Not applicable.

If the child is an Aboriginal child or a Torres Strait Islander child —

(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii) the likely impact any proposed parenting order under this Part will have on that right

74Not applicable.

The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

75An example of the clear difference in parenting between the parties was seen in relation to what happened when K was sick in the father’s care. The father denied that he had any difficulty with coping with a sick child. When K had a cold, he took her to the chemist and got medication to stop her eyes watering. He was told to give her Lorapaed. The mother was seemingly appalled by the father’s actions. She said that her doctor told her that children under six should not be given medication for cold symptoms.

76I have no direct or reliable medical evidence as to whether that comment is an accurate reflection of prevailing medical opinion, but in any event, this issue is just a difference of opinion of health professionals.

77The father did the proper thing by relying on advice from the chemist in trying to alleviate the child’s symptoms. The mother’s approach is different and allows symptoms to settle without the use of medication. Her view is based on professional advice that she received. Neither party is right or wrong, and this issue is not a reflection on their parenting. Consequently, I do not accept the mother’s criticism of the father in relation to this issue.

78Another issue the parties disagreed on was whether K should have a mobile phone. K is five years of age. The mother suggested it would be disruptive for K to have a mobile phone and in effect, unnecessary. The father disagreed, but in any event the father’s proposals are not that the child have a mobile telephone, but that he be able to contact K on the mother’s mobile phone. For that reason, I need not determine that issue.

Any family violence involving the child or a member of the child’s family

79I have dealt with this issue in detail.

If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:

(i) the nature of the order;

(ii) the circumstances in which the order was made;

(iii) any evidence admitted in proceedings for the order;

(iv) any findings made by the Court in, or in proceedings for, the order; and

(v) any other relevant matter

80Not applicable.

Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

81This factor is important in terms of how long I should put orders in place for and how many changes I should make by default (by way of self‑executing orders). Extensions of time after certain periods have the benefit of clarity for the parties, but circumstances may change and the Court must be careful not to make changes too far into the future without the benefit of further evidence of the circumstances at the time. The parties might file further applications to reduce or increase the amount of time. In my view, what is best is to put in place a new arrangement now and then a single progression from those arrangements after a period of time. That will allow K to get used to the current routine before a further change is implemented too quickly.

Any other fact or circumstance that the Court thinks is relevant

82I mentioned earlier the desire to not micro‑manage the parties’ parenting unless necessary to do so. I have found that each parent is capable of caring for all of K’s needs. There is therefore no need to put in place a number of the orders sought by the parties that, in my view, fall into the category of micro‑managing. For this reason I will not make orders sought by the father in paragraphs 14 or 16 (the mother should understand that this is an implicit or implied requirement of any such order regarding telephone calls). I will also not make orders sought by the mother in paragraphs 18 (which the parties should understand is part of their obligations as parents), 20 (whilst the father may do this and there is some benefit in consistency of treatment, it is not required and the father can choose his own general practitioner), and 24 (this behaviour is mandated by the relevant road traffic legislation).

83It would also be useful to avoid too many handovers between the parties if practicable. At the moment there are six handovers per fortnight. The orders that I propose will reduce that amount. I am satisfied that the father should have a presence at the school and can arrange collection and delivery from and to school.

84The father suggests orders that will generally reduce the “midweek” times and his time predominantly occurs on weekends and school holidays. The mother wants to continue the midweek times from 3.00 pm to 5.00 pm on Mondays and Thursdays in each fortnight (this changes the day and reduces the time slightly on each occasion).

85I intend to maintain some midweek times in order to ensure there are not large gaps of time between each occasion the child sees the father. I accept that it would not be fair to allow the father to have the vast majority of weekend time. K needs to spend some weekend time with the mother also. She should be able to enjoy weekend times with both parents.

86The orders that are put in place will finalise these proceedings. I do not intend to leave them open with orders to attend mediation together with the ability to relist. The parties would have to (subject to certain exceptions) attend family dispute resolution in any event before filing any fresh applications.

Orders

1. All previous parenting orders be discharged.

2. By consent, the parties have equal shared parental responsibility for the child, [K Waters] born [in] 2010.

3. By consent, the child live with the mother.

4. Until the beginning of first term 2016, the child spend time with the father:

(a) during school terms on a two-weekly cycle:

i. in the first week from 9.00 am Saturday to 5.00 pm Sunday; and

ii. in the second week from the conclusion of school Thursday to the commencement of school Friday;

(b) in all school holiday periods from 5.00 pm Friday to 5.00 pm Sunday;

5. From the commencement of first term in 2016, the child spend time with the father:

(a) during school terms on a two-weekly cycle:

i. in the first week from the conclusion of school Friday to 5.00 pm Sunday; and

ii. in the second week from the conclusion of school Thursday to the commencement of school Friday;

(b) in each school holiday period on a two-weekly cycle:

i. in the first week from 9.00 am Friday to 5.00 pm Sunday; and

ii. in the second week from 9.00 am Wednesday to 5.00 pm Friday.

6. Effective immediately, the child spend time with the father:

(a) at Christmas:

i. In 2015 and each alternate year thereafter from 5.00 pm on 24 December until 1.00 pm on Christmas Day;

ii. In 2016 and each alternate year thereafter from 1.00 pm Christmas Day until 4.00 pm Boxing Day;

(b) at Easter:

i. In 2016 and each alternate year thereafter from 3.00 pm Easter Sunday to 5.00 pm Easter Monday;

ii. In 2017 and each alternate year thereafter from 5.00 pm Good Friday to 3.00 pm Easter Sunday;

(c) If the child would not otherwise see her father on Father’s Day, from 5.00 pm on the Saturday before Father’s Day until the commencement of school Monday;

(d) On the father’s birthday from the conclusion of school until 6.00 pm.

7. The mother spend time with the child:

(a) If the child would not otherwise see her mother on Mother’s Day, from 5.00 pm on the Saturday before Mother’s Day until the commencement of school Monday;

(b) On the mother’s birthday from the conclusion of school until 6.00 pm;

8. The parties shall not change the child’s residence to any location outside the Perth metropolitan area without the prior written consent of the other party.

9. Unless otherwise agreed between the parties in writing, the child attend Parkerville Primary School.

10. Each parent authorise the child’s school to send copies of any reports, notices, newsletters and the like to both parents.

11. Each parent be at liberty to provide a copy of these orders to the child’s school.

12. During school terms, handovers are to take place at the [Suburb F Park] when not at school.

13. During all school holiday periods, handovers are to take place at the Hungry Jacks restaurant in [Suburb E]. .

14. The father be at liberty to contact the child every second day between 5.30 pm and 6.00 pm by telephoning the mother’s mobile telephone.

15. Each parent authorise the child’s school, day care, treating medical professional or dental professional to provide duplicate information to the other parent directly.

16. Each parent notify the other of any emergency concerning the child by SMS or telephone call as soon as practicable.

17. Each parent notify the other of any hospitalisation or any medical prescriptions relating to the child.

18. Each parent inform the other if they intend to travel interstate with [K] and:

(a) provide by email a copy of the flight details in and out of WA; and

(b) facilitate telephone communication between [K] and the other parent whilst [K] is out of WA.

19. The parents inform each other and keep each other informed of their current contact details including home address and telephone number they can contact the child on.

20. The parties to provide reasonable notice of any inability to spend time with the child in accordance with these orders.

21. The proceedings are otherwise dismissed.

I certify that the preceding [86] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Secretary