Whelan and Lester & Anor
[2022] FCWA 248
•1 DECEMBER 2022
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: WHELAN and LESTER & ANOR [2022] FCWA 248
CORAM: DUNCANSON J
HEARD: 4, 5, 6, 7, 8 NOVEMBER 2019, 26 OCTOBER 2020, 4, 5, 6, 7, 8 JULY 2022
DELIVERED : 1 DECEMBER 2022
FILE NO/S: 5865 of 2007
BETWEEN: MR WHELAN
Applicant
AND
MS LESTER
First Respondent
AND
MRS WHELAN
Second Respondent
Catchwords:
CHILDREN - where the proceedings concern two children in respect of whom the father is the parent of both - where the mother is the parent of one child and seeks orders in respect of both - where the other child's mother did not seek parenting orders - where the father seeks orders for family therapy and thereafter that the children spend time with him - where the mother agrees with the orders sought by the Independent Children's Lawyer which are that the children live with her, that she have sole parental responsibility for them and the father be restrained by injunction from communicating with the children unless in response to direct contact from them - where there has been family violence perpetrated by the father upon the mother and the children - where it is assessed the father does not have a mental illness - where the father has engaged in use of social media accounts to publicly refer to the proceedings - where the father has sent unacceptable correspondence to the single expert witness and the Independent Children's Lawyer - where it is found the father poses an unacceptable risk of harm to the children which cannot be ameliorated - where the impact on the mother of the children spending time with the father is taken into account - where the orders which are in the best interests of the children are those sought by the Independent Children's Lawyer and mother
Legislation:
Family Law Act 1975 (Cth) s 4, s 4AB, s 60B, s 60CA, s 60CC, s 61DA, s 121
Family Court Act 1997 (WA) s 7A, s 9A, s 66, s 66A, s 66C, s 70A
Category: Reportable
Representation:
Counsel:
| Applicant | : | Mr S Jones/Ms E Needham |
| First Respondent | : | Ms D Taylor |
| Second Respondent | : | Ms A Thackray/Ms N Hossen |
| Independent Children's Lawyer | : | Mr R Bannerman |
Solicitors:
| Applicant | : | HBR Family Lawyers/Lighthouse Legal/Wanneroo Legal |
| First Respondent | : | Direct Brief |
| Second Respondent | : | Hickman Family Lawyers/Elite Family Law |
| Independent Children's Lawyer | : | Bannerman Solicitors |
Case(s) referred to in decision(s):
Blinko & Blinko [2015] FamCAFC 146
Isles v Nelissen (2022) 367 FLR 338
Keane v Keane (2021) 62 Fam LR 190
M v M (1988) 166 CLR 69
Re Andrew (1996) FLC 92-692
Stott & Holgar and Anor [2017] FamCAFC 152
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
IT IS NOTED that publication of this judgment by this Court under the pseudonym Whelan and Lester & Anor has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth) and s 243(8)(g) of the Family Court Act 1997 (WA).
This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2021 (WA).
1[Mr Whelan], the father seeks parenting orders in respect of the children [Child A] who is 16 years of age, and [Child B] who is 13 years of age ("the children"). The children have had no contact with the father since May 2017.
2[Ms Lester], Child A's mother, was previously the first respondent in the proceedings. She discontinued her application and did not seek orders.
3[Mrs Whelan], Child B's mother, is the second respondent in the proceedings. The children live with her and she seeks orders in respect of both of them. I shall refer to Mrs Whelan as "the mother" being mindful however that she is not Child A's mother.
4The father's position is that he previously enjoyed a good relationship with the children, and they should spend time with him. He also says he and the children were victims of family violence perpetrated by the mother.
5The mother's position is that the father perpetrated family violence upon her and the children. She fears for the children's physical safety and emotional wellbeing in his presence. Her position is the children should not spend time with the father.
6The father's conduct has been a significant issue in these proceedings. In opening, his counsel submitted much of the evidence has to do with the father's "litigation behaviour". Counsel drew a distinction between that behaviour after the commencement of the proceedings, and the children's relationship with the parties prior to the commencement of the proceedings.
FAMILY BACKGROUND
7The father was born [in] 1972 and is 50 years of age. He is [self-employed]. He has an adult son from a previous relationship.
8Ms Lester was born [in] 1983 and is 39 years of age.
9In December 1999 the father commenced a relationship with Ms Lester. Their child Child A was born [in] September 2006. The father and Ms Lester separated in mid-2007. Child A remained in the father's care.
10The mother was born [in] 1982 and is 40 years of age. She is a [carer]. She has three daughters from previous relationships, [Child C] born [in] 2002, [Child D] born [in] 2005 and [Child E] born [in] 2007. I refer to them herein as "the mother's daughters", noting orders are not sought in respect of them.
11The father and mother commenced their relationship in October 2007. They were married [in] 2008. Their child Child B was born [in] October 2009.
12The parties separated on a final basis [in] February 2016.
SHORT HISTORY
13Shortly before and during the parties' marriage, the children and the mother's daughters lived with them.
14The parties each allege the other perpetrated family violence during the relationship.
15At separation the mother left the family home with the children and her daughters. For some months thereafter, the children and Child E spent equal time with the parties.
16The father deposed the mother refused to allow the children to spend time with him after he informed Child A's school that he should be listed as her primary carer. He deposed the mother would not allow him to see the children until he had a mental assessment.
17The mother deposed she always had concerns for the children's safety while in the father's care.
18Child B and Child E ceased spending equal time with the father in July 2016. Child A remained in his care pursuant to orders made in 2007 in proceedings with Ms Lester.
19The father filed an initiating application on 15 July 2016. On 5 October 2016 orders were made consolidating the proceedings between the father, the mother and Ms Lester and appointing an independent children's lawyer ("ICL"). Ms Padfield (as she then was) was appointed as ICL and instructed Mr Bannerman as counsel at trial in 2019. The children were latterly represented by Mr Bannerman.
20On 9 November 2016 orders were made for Child B to spend supervised time with the father, and a supervision report be produced. Child B spent time with the father in early 2017, supervised by [Supervision Service A]. Supervision Service A reported positively as to the father's engagement with Child B, but also reported the father repeatedly expressed to staff his frustrations with the Family Court system and those involved in the process, including the mother.
21On 11 January 2017 [Dr A], Clinical Psychologist, was appointed single expert witness to enquire into and report on the children and the mother's daughters.
22The mother was concerned for Child A's welfare while in the father's care. Dr A and the ICL also became concerned for reasons discussed below, including the father's recording of Child A's scheduled interview with Dr A, and his subsequent Facebook live recordings.
23On 10 February 2017 orders were made requiring the father to remove posts which referred to the proceedings or persons involved in them from social media. An injunction was granted restraining him from publishing any information relevant to these proceedings on any social media network or by any means without order of the Court.
24Upon an application of the ICL orders were made ex-parte on 4 May 2017 providing that Child A live with the mother and suspending Child B's time with the father. Injunctions were made restraining the father from removing Child A from the care of the mother or Ms Lester and from attending their residences or the children's school, and powers of arrest applied. Orders were made requiring the father to remove from social media, posts which identified persons involved in the proceedings. The father was restrained by injunction from discussing or disseminating documents in the proceedings on any social media platform, from recording any persons involved in the proceedings and from communicating by email with the ICL save with consent or Court order.
25The father has attended upon [Mr B], Registered Psychologist, since 2016 for anxiety and depression.
26On 18 August 2017, [Dr C], Consultant Psychiatrist, was appointed to undertake a psychiatric assessment and prepare a report in respect of the father.
27On 26 March 2018 the father entered a plea of guilty to the alleged contempt of orders dated 10 February 2017. He was sentenced to 12 months imprisonment but was eligible for immediate conditional release upon him entering into a bond in the sum of $100.
28On 31 August 2018 the father was ordered to engage with a psychiatrist and authorise his treating psychiatrist to provide reports to the ICL.
29On 11 August 2019 Dr A, Dr C and the father's treating psychiatrist [Dr D] conferred regarding their respective opinions and reports. A memorandum was produced to which I refer below.
30In March 2020 the father commenced attending upon [Ms E], Clinical Psychologist.
THE ORDERS SOUGHT
31The orders sought by the ICL are contained in a minute of proposed orders filed 8 August 2022.
32The ICL proposes that the children live with the mother and she have sole parental responsibility for them.
33The ICL proposes the father be restrained and an injunction be granted restraining him from:
•attending the children's places of education at any time when either of them may be realistically attending at school;
•communicating or attempting to communicate with the children or either of them, including through any electronic means, other than in direct response to any contact from the children or either of them; and
•posting or causing another person to post, commenting on or sharing any other post on any social media site in any matter that relates to any party in the proceedings including any legal representative or a witness, any of the children of any of the parties, any of the parties themselves or their partners or families without their prior written consent.
34The ICL further proposes:
•orders relating to the delivery up and destruction of recordings made in these proceedings, both electronic and hard copy, and for the removal of internet material referencing these proceedings;
•all parties be restrained and an injunction be granted restraining them from disseminating any recording made in the course of these proceedings other than for the sole purpose of obtaining legal advice or as evidence in disciplinary proceedings;
•the father be at liberty to send gifts and cards to the children for their birthdays and Christmas, to be delivered to the ICL's office with specifications as to wrapping and sealing of those items;
•in the event either of the children express to the mother a desire to make contact with the father, she ensure they have any relevant contact details;
•non-denigration orders; and
•the ICL, any lawyers in these proceedings and either of the single expert witnesses have leave to produce this judgment to any disciplinary authority in relation to any complaint made against them by any of the parties to these proceedings.
35The orders sought by the mother are contained in a minute of proposed orders filed 26 August 2022.
36The mother agrees with the ICL's proposed orders but proposes more comprehensive injunctions in respect of the father, including restraining him from:
•entering, remaining upon, loitering, or being within 100 metres of the nearest external boundary of her place of residence or places of employment;
•attending at, or being within 100 metres of the nearest external boundary of any school or place of employment attended by the children;
•remaining within 50 metres of the mother or the children;
•removing or attempting to remove any of the children from any school, sporting event area or day care facility or from the care and control of the mother and Ms Lester;
•contacting or attempting, or causing or allowing any others, to contact the children or the mother by any means including but not limited to posting or commenting on social media, telephone, or email;
•communicating or attempting to communicate personally with the children;
•posting or causing any other person to post, commenting on or sharing any other post on any social media sites, including but not limited to [public forums], in any manner that relates to any party in the proceedings including any legal representative or a witness in these proceedings, any children of any of the parties, any of the parties themselves or their partners or families without their prior written consent; and
•recording by any means, any parties and the children.
37The mother also proposes non-denigration orders and that she be permitted to obtain passports for the children without the need for consent from the father.
38The orders sought by the father are contained in a minute of proposed orders handed up and dated 6 July 2022.
39The father seeks that he and the mother have shared parental responsibility for the children and they live with the mother.
40The father proposes that a Child and Family Therapist be appointed to conduct reportable family therapy, the goals of which are to:
•facilitate communication between the parties regarding the children's needs;
•improve the quality of parenting skills;
•address emotional/behavioural problems of the children; and
•facilitate the relationship between the children and both parents.
41The father proposes that upon the recommendation of the Child and Family Therapist, he commence supervised and then unsupervised visits with the children.
42The father proposes he and the mother then attend a Late Intervention Dispute Resolution Conference to discuss his ongoing time with the children.
43The father proposes that he have liberty to send gifts and cards to the children on special days, the parties communicate via the Our Family Wizard App, and he be provided with information concerning the children.
44The father seeks various injunctions including non-denigration orders.
THE PARTIES AND THE EVIDENCE
45The trial commenced on 4 November 2019 and was adjourned part-heard on 8 November 2019. It resumed on 4 July 2022 and concluded on 8 July 2022 after 11 hearing days.
46I have considered all of the evidence very carefully. In these reasons I have not referred to all of the evidence as I do not consider it necessary, nor is it practicable to do so. If I do not refer to part of the evidence of a party or witness, it should not be assumed that I have ignored or overlooked it.
The father
47The father was courteous and respectful to the Court. However, at times, the trial was conducted in difficult circumstances by reason of his conduct. The father spoke confidently and sought to give the impression of being cooperative, however he frequently prevaricated and obfuscated. He made speeches which were self-serving and detracted from the matters at issue. Aspects of his evidence lacked sincerity and were unconvincing.
48In circumstances where the mother seeks an order that the children do not spend time with the father, it was important that the relevant evidence be provided and properly tested by cross‑examination. It was also important that the Court not allow the father's conduct to distract it from that task.
49The ICL properly and appropriately reminded the father he was required to answer direct questions with direct answers. The father complained that in doing so, he was bullied. I am satisfied this complaint was his response to being required to give a direct answer to a question.
50The father was highly critical of the ICL. He accused the ICL of having created "frivolous reasons to delay the trial" and described him as "an absolute perjury master". The father said the end of this trial could very well be the end of the ICL’s career and commented on professional matters which have no relevance to these proceedings.
51I consider the ICL conducted himself professionally throughout the proceedings. He is to be commended for his perseverance and tolerance. The reasons for the delays in trial were not the fault of the ICL, and were due to many and varied reasons, including COVID-19, issues with legal aid funding and late instructions to the father's solicitors and counsel.
The mother
52The mother was an impressive and credible witness. She listened carefully to questions and gave careful and considered replies to ensure that they were honest and accurate. She was thoughtful, sincere and showed no ill-feeling towards the father. Her focus was on the children and their wellbeing. She was clearly weary of the proceedings and the impact they have had on the children, herself and her family.
53As discussed below I am satisfied that the mother has not alienated the children from the father. The children's attitude towards the father has been brought about by their experiences and his treatment of them.
FAMILY VIOLENCE
54The father and the mother each made allegations of family violence against the other.
55The police attended on several occasions during the relationship. Following separation, the children and the mother's daughters made disclosures and were interviewed by the Department for Child Protection and Family Support. Police incident reports and the Department's interview notes became exhibit 4.
56The father's evidence conflicted with the accounts of the mother, her daughters, the children, police reports and the Department's notes. He sought to minimise his behaviour and failed in his attempt to make it seem reasonable. Where their accounts of events differ, I prefer that of the mother.
The father
57The father deposed the mother verbally abused him. He deposed she continually told him he was bipolar, and due to her emotional abuse, he became convinced that "perhaps she was right that [he] had bipolar". He deposed she was extremely controlling and chose who he could and could not be friends with. He deposed she would end friendships she did not like, which included using his Facebook to secretly contact his female friends, impersonating him and installing stalking apps to his iPhone.
58The father deposed the mother controlled the family finances during the relationship, and child support he received from Ms Lester was paid into a joint account with the mother, which she took control of. In contrast, in his affidavit affirmed 27 November 2017 he listed bills and payments he made after separation in support of the mother.
59The mother said both parties had financial freedom. She said she had no issue with him spending money, and he had no issue with her spending money on herself.
60The father deposed the mother had unorthodox sexual preferences, a promiscuous nature, and alleged she had extramarital affairs. He deposed that [in] February 2016, while he was sleeping, the mother sexually assaulted him by inserting an implement into him. He said he made a complaint to the police, who said there was insufficient evidence. He deposed in late February 2016, the parties separated, and after separation, they maintained a very amicable relationship until June 2016, including sexual relations. He deposed he believed they would be able to reconcile.
61The mother denied the father's allegation that she anally raped him. She denied she asked him to perform acts which he refused. She said he did not refuse anything because she did not ask anything of him sexually.
62It has not been established that the mother perpetrated family violence upon the father.
The mother
63The mother reported that the father threatened to drive off a bridge with the children in the car, would threaten suicide on a daily basis and almost every day he would threaten to slit her throat.
64The father described the mother's allegation that he would threaten suicide on a daily basis as "absolute rubbish" and said he had never threatened to drive the children or himself over a bridge.
65In March 2012, Child C spilt some nail polish on the floor. In the mother's affidavit affirmed 14 December 2016, she deposed the father screamed at Child C to "clean up her fucking mess immediately", pulled her out of the bed and pushed her face into the carpet telling her to clean that "shit up". She deposed she hit the father on the back and pulled him off Child C. The police were called. A 24-hour police order issued and the father was removed from the premises.
66The father's explanation was that Child C had put nail polish on the floor and he reprimanded her, and the mother attacked him and ripped his shirt.
67On 4 April 2012, the father left the premises in a temper. The mother locked the door and would not let him back into the house. He called the police, and when they went to speak with the mother, he "became abusive accusing police of always taking the female side of things". He showed them the back of his head where he said there was a mark, however the police reported no injuries. The mother told the police there was no assault. The father was issued with a 24-hour police order.
68The father was asked if he recalled becoming abusive with the police. He said he did remember being very upset with them, and if he could wind the clock back, he "absolutely" would have acted differently. He said he made some very poor choices and referred to it as a horrible period in his life. He provided a statistic of non-custodial parents who did not have overnight time with their children.
69The mother alleged on 21 June 2012, the father pushed her, hit her in the face and said, "You women want the right to vote, you can be hit like a man too". The children woke, and the father set a towel on fire and said, "You can all fucking burn". He then left the home with Child B and said the mother would never see them again. She called the police, and the father was arrested and taken to [Hospital A] for voluntary psychiatric assessment. A 48-hour Police Order was issued. The father was convicted of assault.
70The father denied much of the mother's account of events, although he recalled slapping her across the face which he said he regretted. He referred to her evidence about setting a towel on fire as "Amber Heard material". He said prior to this incident she had assaulted him, but he did not call the police. I do not accept his explanation.
71The mother deposed although the parties stayed together until early 2016, the father's behaviour continued. The relationship "came to a head" on 26 February 2016 when the father called the mother to say goodbye to the children and her daughters. She became concerned he was threatening suicide, and she called the Mental Health Response Team. When she arrived home, the police were present, and the children and her daughters were unharmed. A 48-hour notice issued and the mother, the children and her daughters left the home.
72The mother arranged counselling for the children and her daughters at [a counselling service]. She and the father discussed the issues and he told her he had started taking antidepressants again which was why his behaviour had got out of hand. The mother believed he would be able to calm down for short periods of time, and they could make a shared care parenting plan work. She rented a house nearby, they communicated daily and had an equal arrangement for the children and Child E, which the mother deposed seemed to work well for a few weeks.
73The mother was asked if she ever instigated family violence towards the father. She replied, "No, I didn't. Not ever". She was then asked about his allegation she had ripped his shirt. She explained after separation, she and the children went to the father's house to pick up their school bags, and he kept trying to let down the tyres on her car. She said the children were crying in the car, and the father would not move away from the car, and she ripped his shirt as she was pulling him away.
74Child C disclosed to the mother that the father had been violent towards her. Child E reported she had always been scared of the father. The mother applied for a Violence Restraining Order.
75[In] July 2016 an interim VRO was granted, protecting the children and the mother's daughters from the father. The father collected Child A from school before the VRO was served upon him and before the school received a copy. The mother and Ms Lester attended [a Police station] and Child A was returned to their care. Subsequently Child A was returned to the father's care pursuant to orders made in 2007.
76The children and the mother's daughters were interviewed by the Department in January 2017. Child A reported she, Child D, Child C and Child B were lined up, and the father smacked her first and then went along the line. She ran away and when she came back, he smacked her arm again. Child A described her arm as being very red afterwards with a hand mark, and that she could see seven fingers as she got two smacks.
77The father agreed he lined the children up to physically discipline them but said "so did [Mrs Whelan]". He said he did not "hit" them, which he said he found to be misleading. He said he smacked Child A and Child D on the back of the palm, and the other children were not smacked at all. The father said disciplining the children was part of parenting, and he showed them a belt to explain the difference between discipline in the 70's and 80's compared to now. I do not accept his explanation.
78 The father complained Child A was interviewed for four and a half hours. He said "they all but waterboarded my little girl". He described himself as an exceptional father and described the allegations as a creative use of parental alienation which he found horrific to read.
79Child E was interviewed by the Department on 5 January 2017. The interview notes included:
… he chucked [Child B] ground – wood like floor - crying b/c it hurt, pulled pants down & started smacking him on the bum. Crying a lot ...
80The father's explanation was Child B refused to do the dishwasher and they were running around laughing, and he chased Child B in fun, who barricaded the door with cushions. He described it as a:
really terrible indication of how you can turn something beautiful and turn it into something ugly when you have an agenda.
81The father's explanation lacked credibility. I do not accept it.
Child C
82In the father's affidavit filed 14 February 2017, he deposed he had been informed Child C had been "having enough sex to require a 'coil' birth control device", smoking cigarettes and taking drugs, paying people to buy her alcohol, swearing at teachers, getting suspended, posting semi-nude and topless photographs on social media, theft, and watching porn at school. He wrote:
None of this was happening when I was the primary carer yet my parenting is being questioned by the court. Mind you, I did confiscate her iPad …
83It was reported that on 11 November 2016, the mother sent an email to the Child Abuse Investigation Team in relation to Child C's disclosures. Those disclosures included that the father belted Child C with a leather belt, called her "a teenage pregnancy waiting to happen", a "bitch" and a "trouble making little slag", and he tipped up baskets of clothes Child C had folded and made her refold it.
84The father denied Child C's allegations and said she had been paid $400 and a brand new iPhone to assist her mother with this case. He agreed he may have called her a "bitch" and "a teenage pregnancy waiting to happen", his explanation being that he had found her watching pornography and needed to act. He recalled slapping Child C three times on the lower leg when she threw a tantrum.
85Child B was interviewed on 5 January 2017. He reported an occasion when Child C was folding clothes, and the father belted her on the wrist "really hard". Child B described a big red mark and some blood. He said the belt was a blue belt which the father wore to work.
86The father described this as a completely false statement. He said he did not own a blue belt, and no one drew any blood as no belt was used.
87The mother deposed Child A disclosed a number of nasty comments the father had made about Child C. The mother deposed this was hurtful and confusing for Child A to hear, as she adores Child C.
88I am satisfied that the father behaved in a way that was violent and threatening and caused the mother, the children and the mother's daughters to be fearful.
89[In] March 2017 a final VRO was made protecting the mother from the father for two years.
90[In] April 2017 a final VRO was made protecting Child C from the father for two years.
Child A
91The mother deposed that when Child A said when she was living with the father, he grounded her from watching TV when she would not clean her room, she had no one to play with and was lonely, and he spent a lot of time on his computer and phone, making videos and staying in his office. She would often sit alone in the lounge and look out the window.
92In her report dated 28 October 2019, Dr A reported Child A recalled the father recording her daily, and when she wanted to interact with him, he would say he was busy working on his computer, and she felt sad and "trapped" at his house and only remembered one positive occasion around Easter time.
93The father was asked if he recorded Child A daily. He replied "a lot of days, you know, she's a pretty cool kid". He did not recall saying he was too busy working on the computer to interact with her. As to Child A having said she felt sad and trapped at his house and having only remembered one positive occasion around Easter time, the father said "thousands of photographs to prove that that’s a complete misrepresentation". He said this was after years of parental alienation and coercive behaviour.
94The mother said Child A said there were a number of occasions where things were thrown at her, the father used to yell at her all the time, and he pushed her out of the car when they were at school.
95In her report dated 17 April 2022, Dr A reported that Child A recalled shortly before she went to live with the mother, the father was unpleasant to her that day. Dr A reported Child A recalled:
One morning we were late for school, I woke for school, but he got mad at me even though he slept in, he dropped me to school and threw my school bag out of the car and said something mean and drove away.
96In the mother's affidavit affirmed 7 August 2018, she deposed when Child A lived with the father, at visits it was obvious that her personal hygiene was lacking, she smelt of extreme body odour, neglected feminine hygiene and her hair was tangled with large knots. The mother deposed when Child A returned to live with her, Child A had the worst headlice she had ever seen, had not been using deodorant and could not remember the last time she brushed her teeth.
97The father said the allegations of Child A's personal hygiene were "completely untrue, incredibly untrue". He said he always made sure she had personal hygiene products and "was extremely well looked after in the hygiene department". He said it was entirely possible she may have had lice, which he said was a reality of children in primary school.
98Of concern were the events of [a date in] April 2017. The father and Child A attended at Dr A's office, and he demanded the interview be recorded. The recording became exhibit 1, from which it was apparent that Dr A endeavoured to create rapport with Child A who mumbled and did not answer. Having listened carefully to the recording I consider the father behaved in a dominating and possessive way showing little insight as to Child A's emotional needs. His behaviour was intimidatory and confrontational. Dr A was understandably concerned about Child A's welfare and as to the inappropriate nature of the recording.
99In her report dated 27 June 2017, Dr A reported the interview did not go ahead as the father interfered with the process, was adamant on recording Child A, was visibly paranoid and agitated and barged into her office and refused to leave. Dr A reported the father placed a recording device on Child A's stomach and Child A looked frightened.
100Following the interview, while driving, the father filmed himself questioning Child A in a Facebook live recording, which formed part of exhibit 10. He referred to "an attempted visit with the expert" and asked Child A questions such as whether she felt safe with him, whether she thought he was going to hurt her, and how well he looked after her. Child A replied to the effect that she was happy and safe. The father was clearly satisfied with those replies.
101Dr A notified the ICL and the police of the father's behaviour at her office, and the police carried out a welfare check on Child A that evening. In a further Facebook live recording which became exhibit 6, the father filmed his conversation with the police, and their questions to Child A. He asked Child A to confirm on camera that she was safe and happy, and she replied she was. Having viewed the recording, my impression of Child A was that she was unsure and apprehensive.
102The father's recording of Child A on both occasions was appalling and potentially harmful.
103As to the police attendance to conduct a welfare check, the father referred to Dr A's "aggression that she showed and her bullying attitude". He said he was absolutely sure that she was going to "manipulate the system" and send someone out to do a welfare check.
FATHER'S ATTITUDE TO THE MOTHER
104In her June 2017 report, Dr A reported the father was asked to describe how he felt about the mother. He wrote:
I hate her. She has destroyed my children's lives a compulsive liar and a psychopath who does not care who she destroys to achieve her goals.
105Child B spent time with the father, supervised by Supervision Service A, who produced a report in respect of five visits in 2017. That report became exhibit 2. It was reported that at a visit on 26 March 2017, the father indicated the mother "was out to ruin him" saying "she won't stop until I have a heart attack and die". It was reported the father spoke negatively of the mother "she's a monster "she's a psychopath" "she's abusive". In the summary, it was reported that it was difficult to keep the father focused, and he repeatedly expressed to staff his frustrations with the family court system, the DCPFS, the ICL, the single expert witness and the mother. It was reported the father stated in front of Child A "[Mrs Whelan] is abusive" and "its ok she's experienced what [Mrs Whelan's] like".
106On 31 May 2018 the father sent an email to the ICL and others, wherein, among accusations about others, he referred to the mother as a rapist and a domestic abuser. He wrote "Parental alienation is child abuse".
107On 1 August 2018 at 1.56 am the father sent an email to the ICL and others. He attached a photograph of the mother smiling and wrote:
This attached image is of a visibly terrified [Mrs Whelan] just a moment before her domestic violence advocate arrived in the court. Does [Dr A] know anything about sociopaths?
108He went on to write "I live in fear of [Mrs Whelan] murdering my babies".
109In the father's oral evidence in 2019, he described the mother as "a great mum" and "incredibly intelligent". He said she loves her children very much and supports them. He said a lot of the things he loves about the children are things he loved about the mother. He was asked about his previous comments about the mother. He said those were his feelings at the time, however they had changed, but he could not say when. He explained it was a process, and not a switch that clicked".
110The father was asked about his description of the mother as a "sociopath" to Dr A, and his comment that he lived in fear of the mother murdering his babies. He was asked if he still had this fear. He replied that he did.
111Towards the end of his cross-examination in 2019, the father said he and the mother could go forward and co-parent, and he was sure they could be cordial to each other.
112In the father's affidavit sworn 28 June 2021, he deposed he had no intention of disparaging or undermining the mother, should his contact with the children be reinstated. He deposed what had happened between them was in the past and he wished her no harm.
113I refer below to the father's social media activity in relation to the mother during the time the trial was adjourned.
114At trial in 2022, the father described the mother as his abuser and his rapist. He confirmed he believed she was violent to him, and her behaviour constituted intimate partner violence. He said in effect that she threatened him that if he did not do sexual things, he would lose his children. He stood by his accusation that she was a "deviant in sex" who raped him.
115The father did not feel he needed to repair the relationship between himself and the mother. When asked about his proposal for equal shared parental responsibility, the father said he and the mother just needed to be cordial and friendly, and there was no need for any animosity or any negativity whatsoever.
116The father went on to say there was "100 per cent proof" of gaslighting, manipulation and parental alienation. He said if Child A does not wish to have any relationship with him, that is incredibly sad and "an incredible indictment of the existence and the proof of exactly what [he had] been saying for six years".
117I do not accept that the father is either sincere or honest in his sworn evidence to the effect that he has no intention of disparaging or undermining the mother should time with the children be reinstated. I consider that to date he has intentionally continued his attempts to do so.
THE FATHER'S POLITICAL AND OTHER VIEWS
118The father has a political platform in the community. He referred to these proceedings in the context of his policy agenda, including via social media. He said his political affiliations were the biggest obstacle to being reunited with the children, he is a Family Court reformist, and he lives in the public sphere. He said this case is effectively a debate about the Family Court and whether or not it is fit for purpose.
119The father is entitled to his views about the Family Court and is entitled to be critical of it. However, those views are of no assistance to me in determining what parenting orders are in the best interests of the children.
120The father ran as a candidate in [an election]. He said he believed the mother vandalised a poster for his campaign, with something along the words of "We fucking hate you, Dad", and that the handwriting was exactly the same as the mother's.
121The mother denied she had anything to do with defacing the father's poster.
122Mr B confirmed the father had sought his opinion about the writing on the poster. He said the father asked him what he thought about it and whether it was more likely to be done by an adult or a child. Mr B denied the father had asked him whether he thought it was the mother who had done it.
123I can make no finding about the vandalism of the political poster.
THE FATHER'S SOCIAL MEDIA AND CORRESPONDENCE
124The father has used several social media accounts, both personal and relating to his political profile. He has frequently used those accounts to publicly refer to these proceedings, the mother, the children, the ICL and Dr A, in breach of injunctions.
125[In] January 2017, the father made a post [title redacted] via an account titled [Mr Whelan Political Account A]. What followed was the contents of an email he had sent to the ICL, wherein he suggested work was done to "bolster" her costs and referred to "another false accusation raised purely as a court tactic".
126Other social media activity of the father was in a similar vein.
127On 10 February 2017, following an application by the ICL, Moncrieff J made the injunctions against the father as set out at [23] above. Notwithstanding those injunctions, the father continued his social media activity referring to those matters.
128The father also sent voluminous and unacceptable correspondence to the ICL and Dr A. He frequently copied others including the Legal Profession Complaints Committee, the Crime and Corruption Committee, the State and Federal Attorneys-General, and the Australian Health Practitioner Regulation Agency. I refer below to some examples of his correspondence.
129On 13 April 2017 at 2.04 am the father emailed the ICL and referred to Dr A terrifying Child A with an "unnecessary, abusive and intrusive Police Welfare check". He described the expert report as "perverted sexist and dangerous" and said if it was used in the Court action, he would take action against the ICL and Dr A immediately. He accused the ICL of "standard fee gouging" and said "The days of the family court bullying parents and using kids for cash is over".
130[In] April 2020, the father uploaded a photo of Dr A on a Facebook account named [Mr Whelan Account B]. In that post he referred to Dr A by name and made defamatory remarks about her.
131On 20 April 2017, the ICL wrote to the father that he continued to breach orders in relation to social media posts. She referred to his post [in] April 2017 including a picture of Dr A, which the ICL wrote was a direct breach of the Court orders and s 121 of the Family Law Act. She requested he immediately remove such posts from his Facebook page.
132The father responded that evening, accusing the ICL of "trolling" his Facebook and sending a "billing padding email". He wrote that she attacked him for exercising freedom of speech and protecting his children, while she hid behind "121". The contents of that email were posted to a Facebook account named [Mr Whelan] with some of the identifying details substituted for crosses.
133Notwithstanding the orders dated 4 May 2017, the father continued his unacceptable correspondence and social media activity.
134On 25 June 2017, the father wrote to Dr A, acknowledging he had contravened s 121 of the FLA. He offered his apology and sincere regret for his actions.
135In her June 2017 report, Dr A noted the father's apology was sent shortly before the filing of her report, after the Court had placed an injunction on him contacting others and after the removal of Child A from his care. She reported the apology should be seen as nothing more than a superficial attempt at engaging sympathy and discounting responsibility.
136On 3 May 2018, the father emailed the ICL and Dr A and addressed them as child abusers. He alleged the ICL "concealed evidence of [Mr B's] reports at the ex-parte hearing that orchestrated [Child A's] abduction …".
137On 28 May 2018, the father emailed the ICL and Dr A, accusing the ICL of malicious intent and referring to her "morally corrupt narrative". He stated the ICL's actions placed Child A in the hands of a paedophile.
138The father agreed that in a Facebook live post [in] August 2018 he accused the mother of raping him. He agreed he alleged Child C was on heroin. He agreed Child C is close with her siblings. He was asked about the impact on Child A, if Child C told her about the post. He said "it would be a negative impact on my daughter". He agreed she would be distressed.
139On 10 August 2018, the father emailed the ICL and others, accusing the ICL of placing Child A "with her paedophile uncle". He asked her to "act in a way conducive with a position such as the one who have been entrusted with". He stated if she did not, he would contact the LPCC and CCC immediately.
140On 14 August 2018, the father emailed the ICL and others, referring to the ICL and Dr A's "bullying and misandry". He also referred to their "exploitation of the system" and their "deep seated need for power".
141On 16 August 2018, the father wrote to the ICL and others, and stated the ICL had evidence showing the mother and Ms Lester "actively using psychological abuse" to destroy the relationship between the children and himself. He referred to "entrenched misandry and blatant sexism". He accused Child C of certain behaviours and wrote "all of this behaviour started as soon as [Mrs Whelan] broke the family unit with her sexual deviancy taking priority over the family".
142On 10 September 2018, the father sent a series of emails to the ICL, some of which are summarised below:
•In an email sent at 10.13 am, he described the ICL as "the architect of this abuse and misleading of the court". He wrote "the evidence proves [Dr A] lied and failed almost all APHRA guidelines in her report that had [Child A] abducted".
•In an email sent at 11.23 am, he suggested the ICL go to a Facebook page "to see the real [Mr Whelan]".
•In an email sent at 1.41 pm, he accused the ICL of twisting and omitting facts to suit her "own dishonest narrative".
•In an email sent at 2.24 pm, he accused the ICL of deliberately misleading Moncrieff J by "withholding and hiding evidence leading to the court ordered abduction" of Child A.
143On 28 September 2018, the father wrote to the ICL "Every day you play your billable hours game my beautiful children suffer abuse".
144On 8 October 2018, the father wrote to the ICL and referred to children "being murdered because of court enforced parental alienation". He referred to "methods of family court corruption and manipulation" and asked if the ICL was "hitting" all her KPIs.
145The father confirmed his position was that the ICL deliberately hid information from the Court, and misled Moncrieff J, in relation to removing Child A from the father's care in May 2017. He said the ICL had documents she should have provided to the Court, in particular reports from Mr B and others.
146It was established that the father did not provide that information to the ICL until 29 June 2017, almost two months after Child A was removed, as set out in an email sent by him which became exhibit 15. The father explained he filed an affidavit which was rejected by the Court, but he could not recall whether it was before or after the hearing on 4 May 2017. He went on to say his accusation against the ICL was uninformed, uneducated with no legal assistance and in a serious case of severe depression because his child had been taken from him.
147As to the father's social media activity where he referred to these proceedings, he said he breached s 121 under legal advice that he was given initially. He explained he had been told he could post the videos by a member of the Australian Electoral Commission who was a lawyer, and that he was "politically used" because he was strongly encouraged to make videos about the Family Court. He said this was a reason he left the party.
148Towards the conclusion of the father's evidence in 2019, he expressed regret for his conduct. He said he took "total 1000 per cent responsibility" for his mistakes in that period when he was in an incredible point of weakness. He said he could not get legal assistance or counselling. He said he had made horrendous mistakes and absolutely regretted them. At that time he appeared to show some insight as to the effect of his social media activity on the mother and the children.
149In the father's affidavit sworn 28 June 2021, he referred to the effect of his sessions with Mr B and Ms E. He said he has learned to stop, take a step back and consider the other person's perspective before reacting to the situation. He deposed it has provided him with some insight that not everyone thinks the way he does, and he needs to put himself in the other person's shoes as well.
150The father said he is far more empathetic, he cares about people, and has removed himself from points of conflict. As discussed below he was challenged about this by the ICL.
151Notwithstanding the father's evidence in 2019 that he believed he could co-parent and be cordial with the mother, and his sworn evidence in 2021, he continued his unacceptable social media activity and correspondence to the ICL.
152In the mother's affidavit filed 25 June 2021, she deposed that since trial in 2019, the father had continued his correspondence and continued to post further videos, and at least one post on Facebook about her and the proceedings.
153Annexed to the mother's 2021 affidavit was an email sent by the father to the ICL on 8 April 2020, copying others. Notwithstanding the father's acknowledgements in 2019 as set out at [146], he wrote that Ms Padfield:
knowingly mislead Justice Moncrief in the ex-parte hearing in April 2017. She then did not correct her actions at all. Ms Padfield has had 3 years to do so.
154Annexed to the mother's 2021 affidavit was a post she believed was made by the father [in] June 2020 to [Facebook Group A]. This post named the mother, alleged she had committed sexual assault and criminal offences, and said her former partner "finally gave up a year ago and killed himself …".
155The [post] became exhibit 24, and read as follows:
My ex wife's former partner was forced to pay around $36000 a year in Child Support while working as a [tradesperson]. She constantly 'interfered' with his 'contact'. Repeatedly breaching FAMILY COURT ORDERS. Forcing him to spend the wages he earned doing the jobs you and I wouldn't on a legal case to see his children. he finally gave up a year ago and KILLED himself leaving 3 amazing CHILDREN behind. One of our daughters has never met her biological father. My incredible baby was conceived from a liaison between [Mrs Whelan] and her boss towards the end of her earlier relationship with our now lost soul.
Please don't worry about her though. At the same time [Mrs Whelan] ( you'll find her on [Facebook Page B] expressing her victimhood ) was receiving child support from no less that FOUR parents, the governments ( your taxpayer dollars) pension and a full time job.
Parental alienation is very profitable.
Side note, in many countries parental alienation is a criminal offensive.
[Mrs Whelan] strangely and coincidentally ceased 50/50 shared care of our children at the exact same time she was having a 2nd trimester abortion to her boyfriend [Constable F] of the Western Australian police force. I didn't know of [Constable F] at the time as [Mrs Whelan] and I were still sleeping together in a loving relationship. Repairing our marriage I was led to believe after her sexual assault on me in February that year.
Worthy of note. I had a vasectomy in 2010.
[Mrs Whelan] constantly stalked me and made false claims of VRO breaches ( 6 in fact ) with her partner [Constable F] being involved on a several of those occasions. All complaints were made at his station. I was found guilty and in-prisoned for 72 hours [details redacted]. I was convicted for 'displaying the names of a protected person or persons on a social media platform'. [Mrs Whelan] had taken a screenshot of this image to her boyfriend [Constable F]. That is the criminal record [several female] associates have posted on many social media pages illegally. I was arrested in my bed at home. The three officers that shook me to wake me simply let themselves into my house and into my bedroom.
Many other criminal offences happened at the hand of [Mrs Whelan]. Ultimately my daughter was taken from me due to my incorrect gender. My daughter is not [Mrs Whelan's] child. I was a single dad when I met her.
Another coincidence is that the police and [Mrs Whelan] have left me alone since my daughter was ripped from my lifelong care.
Not a peep after a year of constant stalking and harassment.
I was primary carer of all our 6 beautiful children since 2008.
Everything here I can substantiate with evidence Including video.
I would be in prison right now had I not turned my phone on to record when [Mrs Whelan] had made false statements to the police. I was repeatedly arrested and detained but released without charge hours later after my seized phone showed conclusive evidence that [Mrs Whelan] had lied and deceived police. Now over 3 years later [Mrs Whelan] has not been charged with making repeated false statements to police despite clear electronic evidence.
This is about 5% of my story. Would you like to hear the rest?
[hashtags redacted]
…
156On 4 June 2020, the mother's solicitor wrote to the father requesting he remove the post. He responded to the effect that references made in the post were not related to the proceedings and did not contravene any laws. He wrote "[Mr G] waited so long for [Mrs Whelan] to comply with family court orders he took his own life". He also requested the mother be asked why she had not complied with orders made in November 2019 regarding the children's Christmas gifts, which he wrote was "actually a form of control that is recognised as Domestic abuse".
157The father showed little insight as to the impact of his social media activity on the mother or the children. He accused the mother of stalking him in obtaining the posts.
158When the father was asked about the impact of his social media activity on the children, he referred to his right of free speech and complained that the trial was about Facebook rather than his children.
159The mother deposed she and Mr G had a good relationship before he took his own life. She deposed she was very distressed by the father's suggestion she was responsible for Mr G's death. She said she and the children have experienced a high level of stress and grief following the loss.
160When asked about the [post referred to above at [155]], the mother was visibly distressed. She said there had been a number of posts of a similar nature. She said she does not let most of the posts get to her but it was distressing being accused of forcing someone to kill themselves, especially someone she cared about a lot.
161The mother said Child C and Child D have seen a number of posts of a similar nature but was not sure if they had seen the [post]. She said Child D has been "pretty devastated", and Child C is very angry. She was not sure if Child A and Child B were aware specifically of the posts, but said they were aware that the father had said not very nice things about Mr G. She confirmed both children have access to Facebook and have their own accounts.
162A bundle of screenshots of the father's social media activity became exhibit 18. One such post identified as "G" was dated [in] June which I understand to be in 2022, he wrote:
6 years ago a woman destroyed my life and the lives of people I love beyond measure by lying just like #AmberHeard. An industry even helped and paid for her to do it. All of you will be exposed soon. Tick tock.
163In closing, the father submitted this and other posts were not open to the general public and should be viewed as the father "letting off steam". The post has a symbol of two people which the father submitted indicates that a "limited group" has access to it. The difficulty with that submission is that I do not know how many people form part of that group or who those persons might be.
164The ICL referred the father to a post by a page [Mr Whelan Political Account C]. The post included text which read:
Any child custody order that deprives a child of the maximum parenting time possible with a fit, willing and able parent, is child abuse …
165The ICL asked the father how Child A would interpret such a post. His response was that he had no control over what people read on a public forum which is a political page.
166The father went onto say the ICL's questioning seemed to be more about his Facebook than his children. He said:
This entire trial has been more about publicly and in whatever way, shape or form diminishing my value as a human being than reuniting me with my children.
167I explained to the father the importance of the questioning was what impact, if any, the Facebook posts might have on the children.
168As well as his social media activity while the trial was adjourned, the father continued his frequent, inappropriate and unacceptable correspondence.
169The ICL referred the father to his 2021 sworn evidence that he has learned to stop before reacting to situations, take a step back and consider the other person's perspective before reacting to the situation. As to the father's sessions with Ms E and Mr B, he said "I'm a better man for the time that I've spent with them. That's for sure". The ICL then referred the father to his correspondence to the ICL's office in 2022 and asked if he had changed his behaviour. The father said "in the main, except for yourself, yes".
170On 14 April 2022, the ICL filed an affidavit of his administrative assistant annexing correspondence to and from the father from 1 February 2022 onwards. Examples of his emails are set out below.
171On 22 February 2022 the father emailed the ICL copying others. He wrote that the trial had seen "more corrupt behaviour from the ICL's and SEW than most". In cross-examination, the father said he stood by his statement, and in his opinion the ICL and Dr A had committed perjury of which he had evidence to be produced in another Court. He said he regretted not "kissing the arse" of the "special expert witness" because he was informed that's what he should do because they are "the Gods of the Court".
172On 23 February 2022 the father again emailed the ICL copying others, accusing the ICL of a history of dishonesty and breaches of legal codes. He suggested the ICL may "want to purchase an excavator to dig [his] hole deeper" and suggested the ICL may "choose the path of putting children first rather than [his] own narcissistic personality disorder and financial interests".
173On 2 March 2022 the father sent a series of emails to the ICL. In one such email he referred to "awkwardly disguised threats", "disgraceful behaviour" and "predator like behaviour".
426The father proposes that the parties and the children engage in reportable family therapy and thereafter the children spend time with him.
427I have found that the father poses an unacceptable risk of harm to the children if orders are made that the children spend time with him. I consider that risk cannot be ameliorated including by orders for family therapy. I have further found it is to the benefit of the children to have a meaningful relationship with the mother, but with respect to the father that benefit is outweighed by the risk he poses to them.
428I have further found:
•The children wish to live with the mother. They do not wish to spend time with the father, although Child A expressed an interest in seeing him on one more occasion for closure.
•The children have a close and loving relationship with the mother, a close bond with each other and are close to the mother's daughters. They do not have a relationship with the father.
•An arrangement whereby the children spend time with the father would be a change to their circumstances which is likely to disrupt their existing stability.
•The mother's fear and hypervigilance are likely to be exacerbated if orders are made providing for family therapy with a view to the children spending time with the father. I am satisfied that such orders will have a detrimental effect upon the mother's capacity to provide consistently good care for the children.
•I am satisfied that the mother will shield the children from any negativity concerning the father, but I am not satisfied the father will do the same in respect of the mother. I am concerned he will continue his inappropriate social media activity and the children may be exposed to such material.
•There will be practical difficulty and expense if family therapy is ordered.
•The father's capacity to provide for the children's emotional needs is compromised by his negativity towards the mother and his inability to prioritise the children's needs over his own.
•The mother will struggle to promote the children's relationship with the father, but she will not denigrate him or expose the children to a negative influence with respect to him. The father is not capable of encouraging or promoting the children's relationship with the mother in circumstances where his conduct is intended to undermine her relationship with them.
429In balancing the relevant factors, I consider they point overwhelmingly to an outcome which provide that the children live with the mother, they spend no time and have no communication with the father, except in accordance with their wishes. I have concluded orders to that effect are in the children's best interests.
430Having regard to my findings as set out set out above, I am not persuaded orders should be made for the appointment of a Child and Family Therapist to conduct family therapy as proposed by the father. As to the goals of therapy proposed by him, the parties do not communicate. I am not confident he would be able to participate in therapy with restraint. I have no concern as to the quality of the mother's parenting skills and I do not consider she requires therapy to improve them. The children's anxiety should be treated by a clinical psychologist as recommended by Dr A and foreshadowed by the mother. The children do not have behavioural problems which require to be addressed. I am not persuaded the father can change his behaviour such that he can facilitate the relationship between the children and the mother.
431I have taken into account the children's ages and maturity. I have taken into account that Child A told Dr A she would like an opportunity to see the father for closure.
432Importantly I have taken into account that the children have the means to contact the father. They have access to social media and if they want to contact the father through social media, they are able to do so. He lives close to their home. The mother indicated that there is nothing to prevent the children contacting the father. To date they have not chosen to contact him.
433Having regard to my findings above I consider it is in the best interests of the children that the father be restrained from making any attempt to communicate with them, approach them, or contact them. However, if the children wish to contact him or communicate with him, they are at liberty to do so, and he may respond to direct communication initiated by them.
434I do not consider it in the best interests of the children that the parties communicate via Our Family Wizard or that the mother be ordered to provide the father with information concerning the children. In all the circumstances the mother should not be obliged to communicate with the father and based on his past behaviour he cannot be trusted with information concerning the children. I cannot be sure that he will not disseminate this information or use it inappropriately.
435I intend to order that the mother have permission to obtain passports for the children and the requirement for the father's consent be dispensed with. There is no suggestion that the mother is a flight risk. If the children have an opportunity to travel in the future that is likely to be to their benefit.
436To maintain a connection between the children and the father, he may send cards and gifts to them for their birthdays and Christmas. It appears that on a previous occasion those gifts were reasonably well received by the children, although not by the mother's daughters. As submitted by the ICL, enabling the father to provide those items will ensure that, if the children do seek him out, they will know of his ongoing interest in their welfare and that he has not abandoned them.
437I consider orders to this effect to be in the children's best interests. They provide certainty and stability for them in the future, but also give them an opportunity to make choices with respect to their relationship with the father. I have not overlooked my findings as to the impact on the mother of the father's involvement in the children's lives, but I have taken into account that she was accepting of orders providing that the children could contact him if they wish to do so.
438I have no doubt that the father loves the children very much. I am mindful that it is a most serious matter for a Court to make orders to the effect that a child spend no time with a parent. In considering whether to make those orders, I have balanced the relevant factors to which I have referred above. The scales weigh heavily in favour of making such an order. It is not a decision I have come to lightly, and I am acutely aware the children will not have a relationship with the father unless they choose to do so.
439I consider it appropriate to make the injunctions proposed by the mother having regard to her evidence that she is fearful of the father and hypervigilant.
440Having considered the primary and additional considerations I am satisfied the orders set out below, which I intend to make, are those which are in the best interests of the children.
THE PROPOSED ORDERS
441Subject to hearing from counsel for the parties and the Independent Children's Lawyer, I propose to make the following orders.
1All previous parenting orders relating to the children [CHILD A] born [in] September 2006 and [CHILD B] born [in] October 2009 ("the children") be and are hereby discharged.
2The children live with the Second Respondent, [MRS WHELAN].
3The Second Respondent have sole parental responsibility for the children.
4The Applicant, [MR WHELAN] be restrained and an injunction be granted restraining him from:
(a)entering or remaining upon, loitering or being within 100 metres of the nearest external boundary of the Second Respondent's place of residence or places of employment;
(b)attending at, or being within 100 metres of, the nearest external boundary of any school or place of employment attended by the children;
(c)remaining within 50 metres of the Second Respondent or the children;
(d)removing or attempting to remove the children from any school, sporting event area or day care facility attended by them;
(e)removing or attempting to remove the children from the care and control of the Second Respondent or the First Respondent [MS LESTER];
(f)contacting or attempting to contact the Second Respondent or causing any other person to do so, by any electronic or other means, including but not limited to, posting on or commenting on social media, by telephone or email;
(g)initiating or attempting to initiate any direct communication with the children or causing any other person to do so, by any electronic or other means, including but not limited to, any contact via social media, telephone, or email, unless in direct response to contact from the children or either of them;
(h)posting, commenting on, or sharing any other post on any social media site, website, or forum, or causing any other person to do so, in any manner that identifies any party in the proceedings, the children of the parties, the partners or families of the parties, legal representatives and witnesses in the proceedings, without their prior written consent; and
(i) discussing or referring to, in any manner that identifies any party in the proceedings, the children of the parties, the partners or families of the parties, legal representatives and witnesses in the proceedings, in any public setting, including but not limited to [public settings] without their prior written consent.
5In the event that either of the children express to the Second Respondent an interest or a desire to communicate with the Applicant, to the extent the Second Respondent is able, she shall provide the children with relevant contact details they may need to do so.
6The Applicant be at liberty to send gifts and a card to each of the children for their birthdays and at Christmas on the following conditions:
(a)the gifts to be wrapped but with the ability for the Independent Children's Lawyer to identify what the gift is;
(b)the cards be written and placed in an unsealed an envelope; and
(c)the cards and gifts be delivered to the office of the Independent Children's Lawyer no less than 14 clear days prior to the relevant celebration and be of a size and weight that could be uplifted by a single unaccompanied adult.
7In the event that the Applicant delivers items to the office of the Independent Children's Lawyer in compliance with order 6, the Independent Children's Lawyer shall communicate with the Second Respondent who shall uplift the gifts and cards and provide them to the children on the relevant celebration.
8The Second Respondent be permitted to obtain passports for the children and the requirement for the consent of the Applicant to the issue of passports to the Second Respondent is dispensed with.
9The Applicant and the Second Respondent be restrained and an injunction be granted restraining them from denigrating the other party, their partners or families or discussing these proceedings or allegations in these proceedings, on all platforms including social media sites, [and other forums], to or in the presence of any of the children.
10The Applicant be restrained from recording by any means, any parties involved in these proceedings and the children.
11Any party in possession of any recording made of any party, professional or witness in these proceedings do:
(a)deliver to the registry of the Family Court of Western Australia any and all copies of any such recordings within seven days of the date of these orders;
(b)remove or cause to be removed from any social media platform or any internet site any and all material referencing the Applicant's involvement in the Family Court of Western Australia, any allegations in these proceedings that infer or relate to any party or witness in these proceedings which refer to any of the children, parties or professionals in these proceedings; and
(c)destroy any electronic or hard copies of any such recordings.
12The Applicant be restrained and an injunction be granted restraining him from disseminating to any other person other than for the sole purpose of obtaining legal advice or as evidence in any disciplinary proceedings:
(a)any recording of any party, professional or witness in these proceedings; and
(b)any documents filed in the Family Court proceedings or correspondence relating to the Family Court proceedings.
13The Independent Children's Lawyers, the legal representatives, the Single Expert Witness [Dr A], and the Expert Witness [Dr C] have leave to provide these Reasons to any disciplinary authority in relation to any complaint made against them by any of the parties to these proceedings.
14All applications before the Court be and hereby are dismissed.
15All 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.
16In relation to material tendered as an exhibit into evidence in these proceedings:
(a)all parties must collect the exhibits tendered by them ("their exhibits"), from the chambers of Justice Duncanson, at least 28 days, and no later than 42 days, from today's date;
(b)all parties must contact the chambers of Justice Duncanson 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.
17In the event of an appeal being lodged prior to the expiration period of 42 days, paragraphs [15] and [16] above do not apply.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
RM
Associate
1 DECEMBER 2022
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