WILLOW and MALUCA
[2020] FCWA 38
•11 MARCH 2020
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: WILLOW and MALUCA [2020] FCWA 38
CORAM: SUTHERLAND CJ
HEARD: 24, 25 & 26 FEBRUARY 2020
DELIVERED : 11 MARCH 2020
FILE NO/S: PTW 6937 of 2011
BETWEEN: MR WILLOW
Applicant
AND
MS MALUCA
Respondent
Catchwords:
CHILDREN - Spend time with arrangements following the family's participation in [Program A] - Whether mother should reimburse the father for the program costs - Case turns on its own facts
Legislation:
Family Law Act 1975 (Cth)
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Self Represented Litigant |
| Respondent | : | Mr Bannerman |
| Independent Children's Lawyer | : | Ms Johnston |
Solicitors:
| Applicant | : | Self Represented Litigant |
| Respondent | : | Bannerman Solicitors |
| Independent Children's Lawyer | : | Hickman Family Lawyers |
Case(s) referred to in decision(s):
Goode & Goode (2006) FLC 93-286
W & M [2018] FCWA 144
W & W [2017] FCWAM 71
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 Willow & Maluca has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
INTRODUCTION:
1Since 2011, [Ms Maluca] ("the mother") and [Mr Willow] ("the father") have been engaged in parenting proceedings concerning their two children: [Child A], who is now aged 12, and [Child B], who is now aged nine. This included the hearing of the first defended trial, which took place before me over three days in November 2016 (“the 2016 trial”), after which only interim parenting orders could be made. This second defended trial concerns the final parenting orders to be made in relation to the children.
2To their great credit, during this trial the parties reached substantial agreement about many issues. In particular, the mother abandoned her application that the children live in an equal shared care arrangement with the parties, conceding that the children should primarily live with the father; and the father abandoned his application for sole parental responsibility. Instead, the parties agreed to final orders being made for them to have equal shared parental responsibility for the children, for the children to live primarily with the father and otherwise live with the mother, including at specified times during school holidays and special occasion days. The parties also agreed to a plethora of ancillary orders, including for the exchange of information concerning the children and overseas travel arrangements. By the end of the trial, only three discrete issues remained in dispute:
a)The time the children will live with the mother during the school terms. The father and the Independent Children’s Lawyer (“ICL”) proposed the continuation of the existing alternate weekend arrangement (from after school Fridays until before school Mondays, extending to before school Tuesdays in the event that the Monday was not a school day). On the other hand, the mother sought a slow progression of time so that by no later than the commencement of Term 2, 2021, the children would live with her for five nights per fortnight (from after school Wednesdays until before school Mondays in the week coinciding with her partner’s rostered week off work).[1]
b)The time the children lived with the mother during the end of Term 1, 2020 school holidays. The father proposed that it be for a period of five nights, commencing at 5pm on Friday, 17 April. On the other hand, the mother proposed that it be for a period of six nights, commencing at 5pm on Thursday, 18 April. Although the ICL ostensibly supported the father’s position, she did not have a strong view on the matter and made only very limited submissions in relation thereto in her closing submissions.
c)The father sought that the mother reimburse him for the expenses incurred by him in relation to the family’s participation in [Program A] (“the Program”). The mother opposed the order sought by the father, but submitted that if an order for reimbursement was to be made, it be capped at half the total cost. The ICL did not have a view about the issue and did not make any submissions in relation thereto.
THE EVIDENCE:
[1] In particular, the mother’s proposal was that the existing arrangements should continue until the end of Term 3, 2020. The mother proposed that at the commencement of Term 4, 2020, there be an extension of time to four nights per fortnight (by commencing the time on Thursdays after school). The mother then proposed that subject to the father’s agreement, there be a further extension of time to five nights per fortnight (by commencing the time on Wednesdays after school) at the commencement of Term 1 2021, and if there was no agreement by the father, then starting at the commencement of Term 2, 2021.
3Over the course of these very long proceedings, the mother and the father have each been represented by solicitors / counsel at times and have also had extended periods of being self-represented litigants. During this trial, the mother was represented by her solicitor, whereas the father was a self-represented litigant. I considered that the father competently represented himself: he impressed as being well organised and prepared, for example, in relation to his cross-examination of the mother and her witnesses.
4For the purposes of this trial, the mother relied upon her trial affidavit,[2] financial statement[3] and the affidavits of her partner, [P][4] and her next door neighbour, [Ms L].[5] The father relied upon his two affidavits,[6] financial statement[7] and the affidavit of his wife, [M].[8] The ICL relied upon the evidence of a clinical psychologist, Mr [R], who has provided ongoing reportable family therapy to the family since late 2017 or early 2018, as part of the “aftercare” stage of the Program.
[2] Mother’s trial affidavit filed 24 July 2019.
[3] Mother’s Form 13 financial statement filed 8 May 2019.
[4] Affidavit of [P] filed 24 July 2019.
[5] Affidavit of [Ms L] filed 16 January 2019.
[6] Father’s affidavits filed 8 January 2019 and 5 July 2019.
[7] Father’s Form 13 financial statement filed 5 July 2019.
[8] Affidavit of [M] filed 3 February 2020.
5Each of the parties, their respective witnesses and Mr R were cross-examined by the other party and by the ICL (save that the ICL elected not to cross-examine Ms L and the father elected not to cross-examine Mr R).
6I considered that the father and the mother were both open, frank and sincere in giving their evidence. Both the father and the mother impressed as being prepared to make significant concessions against their respective interests. In particular, I considered that the mother demonstrated that since the 2016 trial, she had developed considerable insight into, and understanding of, the long-lasting, damaging impact of her parenting on the two children after separation. Both P and M were very protective of their respective partners and appeared quite mistrustful of the other couple. In my view, these factors tended to “colour” their perspectives somewhat. In particular, both P and M appeared less willing to make appropriate concessions against their respective interests. Nevertheless, I am satisfied that they, and Ms L, attempted to give their evidence honestly and as they saw it. Finally, I considered that Mr R was very professional, helpful and considered in giving his evidence and I had no hesitation in accepting his evidence.
FACTUAL BACKGROUND:
7The father was born in 1974. At the time of this trial, the father worked as [a contractor] on a full-time basis. He lived with M and the children at his home in [Suburb A]. M also worked in her own [contracting] business and earned a modest income.
8The mother was born in 1975. At the time of trial, the mother was a full-time homemaker and parent. She lived with P and their young son [X] (who was born in 2018), in P’s home in [Suburb B], approximately 20 kilometres from the father’s home. P worked full time [in a remote location], on an eight day on / six day off basis.
9The mother and father commenced a relationship in 2003, started living together in March 2004 and were married [in] March 2005. At the time of their marriage, the father also had an older daughter from an earlier relationship, [T], who was born in 1998. T lived with the parties at various times and at other times lived with her mother.
10Child A was born in 2008 and Child B was born in 2011. The mother was the primary home-marker and parent to the children and the father was the primary financial provider for the family. The parties separated for a short time in July 2011, before separating on a final basis in November 2011. After separation the children lived with the mother and spent varying time with the father, as set out below. The parties were divorced [in] June 2013.
The 2016 trial
11The first trial took place in November 2016. I delivered my reasons on 20 March 2017 (the “2017 Reasons”).[9] Pursuant to s 69ZX(3) of the Family Law Act 1975 (Cth) (“the Act”), I am permitted to “adopt any recommendation, finding, decision or judgment” of any court. Accordingly, except for where I otherwise identify in these reasons, I adopt the findings I made in the 2017 Reasons. In summary:
[9] [W & W] [2017] FCWAM 71.
a)The mother’s case during the 2016 trial was that the father had perpetrated family violence against her, and sexually abused Child A. As a result, her position was that the children should spend no time with the father.
b)Whilst I was satisfied that the parties had ongoing issues in their marriage, I was not satisfied that the father had subjected the mother to daily family violence, including controlling, obsessive and intimidating behaviours, as alleged by the mother.[10] Instead, I was satisfied that the mother continually exaggerated her allegations against the father, whilst simultaneously downplaying her own inappropriate behaviours during arguments.[11]
[10] W & W [2017] FCWAM 71, [19].
[11] W & W [2017] FCWAM 71, [19].
c)Immediately following separation, the mother failed to facilitate the children spending any time with the father, and obtained an ex parte interim violence restraining order against him. The mother conceded under cross-examination that she did not want the children spending time with the father for three months, as she wanted time to get over the separation. The father commenced proceedings in this Court in December 2011, the mother cancelled the interim violence restraining order in January 2012, and the children commenced spending regular time with the father pursuant to court order in February 2012.[12]
[12] W & W [2017] FCWAM 71, [20].
d)The mother maintained that, after separation, she became increasingly concerned about Child A’s behaviour when in her care, including that he was not eating properly, had tantrums, refused to go to school and was withdrawn. On 9 April 2012, she took Child A to [Hospital A] about his eating difficulties and was referred to a paediatrician. On 18 April 2012, the mother took Child A back to Hospital A after he woke up distressed and complaining of having a sore bottom. The mother told staff at Hospital A that she suspected Child A had been abused. However, Child A refused to cooperate with being examined and did not make any disclosures.[13] In the months that followed, the mother particularised the specific allegation, namely that the father had put [a foreign object] in Child A’s bottom.[14]
[13] W & W [2017] FCWAM 71, [22]
[14] W & W [2017] FCWAM 71, [24] – [26].
e)Whilst it was common ground that Child A had a history of difficult and challenging behaviours, including problems eating and obsessive type behaviours, I found that there was simply no basis for the mother’s conclusion these issues were as a result of Child A having been sexually abused by the father.[15] Ultimately, I was not satisfied that Child A had in fact made any disclosure of sexual abuse to the mother, or that the father had sexually abused Child A.[16] However, I was satisfied that: (1) the mother engaged in behaviour in Child A’s presence that would likely have signalled to Child A that his father had done something bad to him; (2) Child A’s alleged displays of sexualised behaviour could be explained as being developmentally appropriate children’s play as a consequence of natural curiosity of the human body, or Child A responding as a consequence of his awareness that the mother believed the father had sexually abused him; and (3) the mother simply refused to consider any other possible explanations for Child A’s behaviour.[17]
[15] W & W [2017] FCWAM 71, [23].
[16] W & W [2017] FCWAM 71, [27].
[17] W & W [2017] FCWAM 71, [31], [33] and [35].
f)I was not satisfied that the other allegations made by the mother about the father and the paternal family more broadly (including that the father was a drug dealer) had any foundation. I found that there was simply no cogent evidence that could lead me to conclude that the father, or any member of the paternal family, posed a risk to the children.[18]
[18] W & W [2017] FCWAM 71, [36].
g)However, I was satisfied that the mother posed a serious, ongoing risk of psychological harm to the children, for the following reasons: (1) the mother was shaping and influencing Child A’s negative perceptions of, and attitudes to, spending time with the father; (2) the mother failed to protect Child B from Child A’s negative perceptions of the father; (3) I accepted the single expert’s evidence that the children’s refusal to be interviewed by him in 2016, was entirely incongruent with the mother’s assertion that the children were terrified of the father and were distressed about having to talk about him, particularly as they had not had any contact with the father since July 2014; and (4) I accepted the single expert’s evidence that the mother’s actions and behaviour, such as influencing the children’s perceptions of, and attitudes to, contact with the father, including causing Child A to believe that he had been sexually abused by the father, placed the children at risk of being substantially alienated from the father, was emotionally abusive to the children and likely to cause the children to suffer long term serious psychological harm.
h)Subject to the children not being placed at risk of ongoing harm, I was satisfied that there was a benefit to the children in having a meaningful relationship with both parties.[19] I found that the father was a good candidate to promote the children’s relationship with the mother, but had significant concerns about the mother’s willingness and ability to facilitate and encourage a close and continuing relationship between the father and the children.[20] Whilst I was satisfied that both parties were able to provide for the children’s physical needs, I was not satisfied that the mother had the capacity to provide for the children’s emotional and intellectual needs, having regards to her psychologically abusive behaviours in alienating the children from the father.[21] Indeed, I formed the view that the mother’s ability to meet her parental responsibilities had been completely overborne by her antipathy towards the father and her concerted efforts to alienate the children from him.[22] I accepted the single expert’s evidence that it was highly desirable that the mother engage in intensive therapy to address her psychologically abusive behaviours towards the children, and that therapy was only likely to be helpful if the mother was genuinely motivated to deal with her psychologically abusive behaviours.[23]
i)I was (save for some specific matters) satisfied that the father had the capacity to provide for the children’s emotional and intellectual needs.[24]
j)I found that the children had a close relationship with members of the extended maternal family, but that the children’s relationship with the paternal family had suffered following separation as a result of the mother’s actions.[25]
k)With respect to Child A, I found that he had a history of concerning developmental and/or behavioural issues, including difficulties with eating, speaking and some obsessive routines. Regrettably, however, no evidence was led during the 2016 trial from Child A’s medical and psychological providers. Further, the evidence that was led at trial as to Child A’s current health and wellbeing was contradictory.[26] However, I did accept the evidence of the single expert that he was unaware of the parties’ concerns in relation to Child A having autism spectrum disorder (“ASD”) and that there was no reference to that issue in the subpoenaed medical files he inspected. I also accepted the single expert’s evidence that if Child A’s school held concerns that he may have ASD, they would have referred him for assessment. In any event, at the conclusion of the 2016 trial the parties consented to an order that Child A be assessed for ASD.[27]
l)The father’s position, for the purposes of the 2016 trial, was that the children should immediately be removed from the mother’s care and commence living with him. I formed the view that, in this respect, the father had a simplistic and naïve understanding of the potential difficulties (and potential trauma to the children) that would result from such change. I was also of the view that the father had given little thought to the mechanics of the proposed intensive family therapy, and there was little evidence in this regard.[28] Despite the desirability of finalising proceedings, and given both the father and the ICL sought only interim orders at the conclusion of the trial to enable the family to participate in family therapy, I was satisfied that such course of action was in the best interests of the children.[29]
m)Ultimately, notwithstanding my significant concerns about the likelihood of the mother attempting to derail the intensive family therapy process, I was satisfied that the parties should participate in said therapy. Given the paucity of evidence about the proposed arrangements for family therapy adduced during the trial, on 3 April 2017 I made orders for the parties to obtain a report from Ms [C], a clinical psychologist, as to her recommendations for family therapy, and what supports should be put in place in the event the children were removed from the mother’s care and placed with the father.[30]
Events following the delivery of the 2017 Reasons - the children change residence
[19] W & W [2017] FCWAM 71, [42].
[20] W & W [2017] FCWAM 71, [49].
[21] W & W [2017] FCWAM 71, [52].
[22] W & W [2017] FCWAM 71, [56].
[23] W & W [2017] FCWAM 71, [62].
[24] W & W [2017] FCWAM 71, [52].
[25] W & W [2017] FCWAM 71, [44] – [45].
[26] W & W [2017] FCWAM 71, [53] – [54].
[27] W & W [2017] FCWAM 71, [55].
[28] W & W [2017] FCWAM 71, [61].
[29] W & W [2017] FCWAM 71, [59].
[30] Orders dated 3 April 2017; W & W [2017] FCWAM 71, [68].
12In June 2017, the father and the mother each filed a Minute of Proposed Orders. Both parties proposed that the family participate in the Program, including effectively both seeking orders that until further order, the father have sole parental responsibility for the children, the children live with the father and have no contact with the mother for a period of no less than 90 days. Each Minute also sought a raft of other “mechanical” orders to facilitate the family’s involvement in the Program, including the father and the children participating in an initial four to five day “live in” workshop to assist the children to transition into the father’s full-time care. There were some minor differences in each party’s Minute, including who should be responsible for the costs of the Program.[31] In short, the father proposed that he initially pay the full costs of the Program, but on the basis that the mother reimburse him. On the other hand, the mother proposed that she pay only for those costs associated with her own participation in the Program workshop.
[31] The parties’ respective Minutes each appeared to be based on a “template” Minute, presumably provided to them by the Program providers.
13On 15 June 2017, I made orders for the family to engage in the Program, including the father and children participating in the initial workshop phase. I also made an order for the father to initially pay the full cost of the Program and that the issue of the reimbursement of the therapy costs by the mother be adjourned generally.
14The family commenced the Program in September 2017, the children moved to live with the father at that time and the father enrolled the children to attend at a new school near to his residence.
15In July 2018, the matter came back before me for an interim hearing as to the ongoing time the children should spend with the mother. I delivered ex tempore reasons on 9 July 2018[32] (the “2018 Reasons”), the salient parts of which I summarise as follows:
[32] [W & M] [2018] FCWA 144.
a)The mother and P commenced the Program in November 2017. The Program providers recorded that the mother, in particular, was cooperative and completed the Program successfully. The report recommended that the mother’s time with the children should gradually increase on a supervised basis, initially supervised by the Program providers and then by an outside professional agency. Provided that time went well, the Program providers recommended the mother progress to unsupervised time in the community before finally moving to a more permanent live-with or shared or spend-time‑with arrangement.[33] The Program providers also concluded that the children’s relationship with their father had been successfully re-established.[34]
b)The mother recommenced spending time with the children on 28 February 2018, initially supervised by Ms C and Mr R. There were further supervised visits with the Program providers in March 2018.[35] The children’s time with the mother progressed to being supervised by [Supervision Service A]. On 24 May 2018, Supervision Service A provided a report in relation to four visits that took place in April and May 2018. The report was very positive in its terms and there were no issues identified in relation to the behaviour of either of the children, the mother or P when the children were spending time with them.[36]
c)Although the father raised some concerns in his affidavit material prior to the interim hearing on 9 July 2018, none of those concerns were reflected in the Supervision Service A report.[37] Further, Mr R’s report (completed in June 2018) noted that the parents had separately reported to him that the children’s time with the mother seemed to be progressing fairly positively, and he recommended that the time the children spend with the mother increase at a more rapid pace.[38] However, Mr R also cautioned against accelerating at too fast a pace, lest the children revert back to previous dysfunctional behaviours.[39]
d)In determining what time the children should spend with the mother moving forward, I was satisfied that the need to protect the children from the risk of psychological harm was still a significant issue in the matter.[40] Although I commended the mother and P for participating in the after-care stage of the Program, I was also concerned that the mother’s psychologically abusive behaviour was entrenched and long standing. In this regard, I noted that it remained to be seen whether the mother could effectively put into practice the lessons she said she had learned.[41]
e)I found that since the family entered the Program in September 2017, the children had been able to re‑establish a good relationship with the father. Further, despite the initial interruption in the children’s time with the mother, they had also been able to maintain a good relationship with her.[42] I also observed that the children’s re-introduction to the mother had progressed without any significant issues, aside from the father’s view that Child A had shown some signs of anxiety.[43] However, I formed the view that the rapid increase in time proposed by the mother did not provide adequate opportunities for the father, the ICL and other independent persons (including the children’s school) to either monitor and/or provide feedback as to how the children were coping and, in particular, whether the mother was encouraging and/or otherwise acting in a manner that placed the children at further risk of reverting back to their previous dysfunctional behaviours.[44]
f)Ultimately, at the conclusion of the interim hearing, I was satisfied that it was in the children’s best interests to make orders that the children spend time with the mother on an unsupervised basis as follows: firstly, on Saturday, 14 July 2018, for a period of six hours; on Saturday, 21 July 2018, for a period of eight hours; for the next four weekends, commencing Friday, 27 July 2018, from the conclusion of school Friday to 5pm Saturday; and thereafter each alternate weekend from the conclusion of school or 3.00pm if not as school day on Friday, until 5pm on Sunday. I also ordered that any handovers not conducted at the school be supervised by Supervision Service A.
Subsequent events
[33] W & M [2018] FCWA 144, [5].
[34] W & M [2018] FCWA 144, [6].
[35] W & M [2018] FCWA 144, [4].
[36] W & M [2018] FCWA 144, [7].
[37] W & M [2018] FCWA 144, [8] and [9].
[38] W & M [2018] FCWA 144, [11].
[39] W & M [2018] FCWA 144, [12].
[40] W & M [2018] FCWA 144, [14].
[41] W & M [2018] FCWA 144, [22].
[42] W & M [2018] FCWA 144, [16].
[43] W & M [2018] FCWA 144, [15].
[44] W & M [2018] FCWA 144, [19].
16The children’s time with the mother progressed in accordance with the orders set out above. In late July 2018, the children commenced spending overnight time with the mother. In September 2018, the children then commenced spending time with the mother on alternate weekends. On 13 November 2018, I made orders for the children to spend time with the mother on Christmas Day, and at other times during the summer school holidays. As the parties had been unable to reach a final agreement in relation to a number of issues (including the children’s ongoing time with the mother and their future schooling arrangements), directions were also made programming the matter to trial.
17The children spent time with the mother on Christmas Day 2018. However, the children then refused to spend any further time with the mother for several weeks. Both parties appeared to accept that “something happened” to trigger the children’s refusal to spend further time with the mother and P. Both parties were somewhat suspicious of the role of the other party and/or the other party’s partner in triggering the children’s refusal. I am not satisfied that the children’s refusal was triggered by any inappropriate actions and/or any undue influence by either party and/or their respective partners. I am satisfied that the most likely explanation for the children’s refusal was that it was a mal-adaptive / dysfunctional reaction by the children to their perceptions that the mother and P were trying to pressure them into changing schools again.
18In early 2019, the family re-engaged with Mr R, in the light of the children’s ongoing refusal to spend time with the mother. With his assistance, the children recommenced spending time with the mother. On 18 February 2019, I made further orders (largely in accordance with the recommendations of Mr R) for the children to spend time with the mother: (1) during the school terms, each alternate weekend from after school on Fridays (or 3.00pm if a non-school day) to the commencement of school on Mondays (extending to Tuesdays if the Monday was a non-school day); and (2) during school holiday periods.
19Over the course of 2019, the children have regularly spent time with the mother during the school terms (as set out above) and have gradually spent increased blocks of time with the mother during the school holidays. I am satisfied that the children have been very resistant to increasing the time they spend with the mother; and that Mr R, the parties and their respective partners have all worked hard to encourage the children to spend increased time with the mother.
20In or about late 2019, the parties resolved the issue of the children’s future schooling, on the basis that Child A commenced high school in 2020 at [High School A] and Child B will continue to attend her current primary school (and then in all probability, also attend the same high school as Child A).
21Both parties agreed and I am satisfied that the Program has been very beneficial to their family, including in: (1) re-establishing a close and loving relationship between the children and the father; (2) enabling the children to maintain a positive relationship with the mother (albeit at this stage, not to the level hoped for by the mother); (3) enabling the mother to gain considerable insight into, and understanding of, the long-lasting, damaging consequences of her earlier parenting choices on the children; (4) giving both parties a greater understanding of, and tools to respond to, the children’s ongoing mal-adaptive / dysfunctional behaviours; and (5) through ongoing after-care therapy with Mr R, providing a mechanism for the family to explore and resolve issues as they arise.
22The parties also agreed and I am satisfied that since September 2017, the children have thrived in the father’s and M’s care, they enjoy living with the father and M, and they are doing exceptionally well at school and in their chosen extra-curricular sporting activities. There was no suggestion at all that Child A may suffer from any specific developmental and/or behavioural issues such as ASD (as had featured during the 2016 trial). The father and M are heavily involved in the children’s sporting activities, including M coaching one or other of the children’s [sporting] teams in 2019 and 2020, and the father and M very regularly attending the children’s training, games and weekend carnivals.
23The parties did not appear to dispute, and I accept Mr R’s evidence that although the children now have the benefit of living in a “normal” household with the father and M and are gradually forming more “normal” patterns of behaviour, nevertheless: (1) the dynamics between the two households still remains very dysfunctional; and (2) the children continue to exhibit some long term mal-adaptive / dysfunctional patterns of behaviour, such as resisting spending increased time with the mother and “telling on” the mother and P. For example, although I accept the children have reported that the mother drinks too much and that P and the mother argue regularly in their presence, I am not satisfied that the children’s reports are accurate. As a further example, I am satisfied that the children have on occasions complained that the mother is not supportive of their extra-curricular sporting activities. In my view, the children’s (and M’s) expectations that the mother should attend every game or weekend carnival was not reasonable, particularly given that the mother also has the care of a very young toddler.
APPLICABLE LAW:
24These proceedings are determined under Part VII of the Act. In reaching my decision I will be guided by the objects of that Part and the principles underlining those objects. Section 60B sets out the objects and the principles underlying them. The Full Court in Goode & Goode made clear that when a parenting order is sought, whether it be final or interim, the starting point is the application of a presumption that it is in the best interests of the children that the children’s parents have equal shared parental responsibility, subject to the qualifications set out in the relevant section.[45] In this case, the parties and the ICL agree, and I am satisfied, that the court should make an order for the parties to have equal shared parental responsibility for the children. Accordingly, I must consider the obligations placed upon me by s 65DAA of the Act which requires me to then consider whether the children should spend equal time or substantial and significant time with each parent. Again, in this case, the parties and the ICL agree, and I am satisfied, that an order for the children to spend equal time with each of the parties is not appropriate. In determining the outcome of parenting matters, I must, pursuant to s 60CA of the Act, consider the best interests of the children as the paramount consideration. In determining what is in the children’s best interests I must consider the matters set out in s 60CC of the Act. Given that these proceedings commenced prior to 7 June 2012, the old legislative provisions continue to apply. I now turn to a consideration of the relevant factors as required by the legislation. If I do not refer to a particular consideration, that is because I do not consider it relevant in this case.
PRIMARY CONSIDERATIONS:
The benefit to the children of having a meaningful relationship with both of the children’s parents
[45] Goode & Goode (2006) FLC 93-286, [56].
25The parties and the ICL agree, and I am satisfied, that there is a positive benefit to the children in having and maintaining a meaningful relationship with each of the parties.
The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
26I accept Mr R’s evidence, which accorded with my own assessment of the mother, that since September 2017 the mother has gained significant understanding about her dysfunctional parenting of the children in the years after the parties’ separation, and she has made good progress in addressing these issues. At the trial, I considered that the mother was reflective and insightful about the harmful impact of her parenting on the children in past years, and she readily acknowledged that: (1) the children had made excellent progress in the father’s care since September 2017 and they should continue to live primarily with the father; and (2) she supported the children continuing to attend at their current schools and continuing to engage in their extra-curricular sporting activities.
27In their respective Papers for the Judge, each party raised some “concerns” that the children may be exposed to some negative comments and influence in the other party’s household. Whilst I am satisfied that the children are highly likely to be aware of the tension and mistrust that exists between the two households, I am not satisfied there was any cogent evidence from which I could be satisfied that either the father or the mother (or their respective partners) exposed the children to negative comments and influence about the other.
28I accept Mr R’s evidence that the children are not at risk of harm from being subjected to, or exposed to, abuse, neglect or family violence in the care of either the father or the mother.
ADDITIONAL CONSIDERATIONS:
Any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to children’s views
29In October 2018, the parties and the children met with a Family Consultant, who subsequently prepared a Family Report. There was some controversy, in particular as to whether Child A’s comments to the Family Consultant were a true expression of his actual views at the time. In any event, by the time of this trial, the mother no longer sought an equal time arrangement for the children and neither the parties nor the ICL sought to cross-examine the Family Consultant. The parties and the ICL all appeared to concede, and I am satisfied, that little turned on the children’s expressed views to the Family Consultant as at October 2018.
30The ICL and/or another solicitor in her office had the opportunity to meet with the children on two occasions in the lead up to this trial. The children were firm in their views that they wished to live primarily with the father and continue to spend time with the mother in accordance with the current arrangements (that is, on alternate weekends during the school terms and for blocks of up to five nights / six days during school holidays). The children were resistant to any increase in the time. This was consistent with the father’s evidence about the children’s comments to him and Mr R’s evidence about the children’s views in therapy.
31I accept Mr R’s evidence that the mother has consistently sought an accelerated progression of her time with the children to equal time, notwithstanding that the children were often resistant to spending any increased time with her. Progress has been slow. I also accept Mr R’s evidence that the children’s resistance derives from their longstanding mal-adaptive / dysfunctional patterns of behaviour, rather than, for example: (1) from the children having any genuine concerns about spending increased time with the mother;[46] or (2) from the children being unduly influenced by the father and M.[47]
[46] I am satisfied there were no real concerns about the mother’s ability to get the children to and from school on time, or to and from their extra-curricular activities, particularly given P’s support.
[47] I am satisfied that the father and M genuinely would like the children to spend increased time with the mother; and particularly in the case of the father, his goal is (subject to the children’s wishes) to eventually reach an equal shared care arrangement.
32I accept Mr R’s evidence that in therapy sessions, he has attempted to address the children’s resistance directly with the children, as well as giving the father and mother strategies to try to overcome the children’s dissent and resistance. For example, Mr R has encouraged: (1) the mother to be patient in relation to the progression of time; and (2) the father to be firm with the children about gradually increasing the blocks of time during school holidays, including in relation to increasing the time during the forthcoming April 2020 school holidays to a block of six nights / seven days. However, I also accept Mr R’s evidence that he had concerns about pushing the children “too far” (for example, in relation to time during the school terms), given the children’s continuing long term mal-adaptive / dysfunctional patterns of behaviour, as there was a risk of the children again refusing to spend any time at all with the mother, de-railing the significant progress that had been made in 2019. The ICL was also concerned about this issue, particularly given the children’s refusal in late 2018 / early 2019 and because Child A told the ICL at their most recent meeting that Mr R was putting too much pressure on him to spend more time with the mother.
33This is a significant factor in my decision.
The nature of the relationship of the children with each of the children’s parents and other persons (including any grandparent or other relative of the children)
34It was not in dispute and I am satisfied that the children have very close and loving relationships with the father and M. Since September 2017, the father has also been able to facilitate the children re-building positive relationships with the extended paternal family, including the paternal grandmother and their older half-sister T. In addition, the father has facilitated the children maintaining positive relationships with various members of the extended maternal family, from whom the mother has become estranged since the 2016 trial.
35It was not in dispute and I am satisfied that the children have positive relationships with the mother and P, albeit the mother and P were very conscious of some diminution in the quality of their relationships with the children since September 2017. The children both have close and affectionate relationships with their half-brother X. In addition, the mother has been able to facilitate the children maintaining positive relationships with the remaining members of the extended maternal family.
The willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent
36I am satisfied that the father continues to promote the children’s relationships with the mother. In my 2017 Reasons, I expressed significant concerns about the mother’s willingness and ability to promote the children’s relationships with the father. To the mother’s great credit, I am satisfied that in the years since, she has undertaken significant work in therapy and made positive progress in this area. I am satisfied that the mother has now demonstrated that she is a good candidate to promote the children’s relationships with the father.
The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of their parents, or any other child or other person (including any grandparent or other relative of the children) with whom they have has been living
37In relation to increasing the mother’s time by one night in the April 2020 school holidays, the order sought by the mother simply reflected the arrangement already agreed to by the parties with Mr R in therapy. Whilst the children are resistant to the extra night, I accept Mr R’s assessment that the children’s resistance to this minor increase in time was being appropriately managed through the therapy process and should be encouraged to proceed.
38In relation to increasing the mother’s time during the school terms, the mother proposed that the court make orders to facilitate a gradual increase, so that by the commencement of Term 2, 2021 at the latest, the children would spend a block of five nights per fortnight in her care. The mother sought the increase in time during the school week, primarily so that: (1) she and the children could enjoy “routine” time together during the school week, rather than be solely perceived as the “fun” parent who primarily spent time with the children on weekends and school holidays; and (2) she and the children could enjoy more time together in the absence of the father and M, particularly given their heavy involvement in the children’s sporting activities on weekends. In my view, these benefits were to some extent overstated, given that: (1) the mother already has the opportunity to participate in the children’s school routine (including by being responsible for drop offs and/or pick-ups on Mondays and Fridays); and (2) the children will continue to interact with M (and possibly the father) at [sport] training sessions during the school week in any event (save that the children do not presently play sport on Wednesday evenings).
39I accept Mr R’s evidence that whilst the mother’s aspiration to spend increased time with the children was unremarkable in the context of a “normal” separated family, unfortunately this family’s circumstances were a long way short of “normal”. Although much improved since September 2017, the dynamics between the two households remained very dysfunctional, as were the children’s underlying patterns of behaviour. The mother conceded that the children would be resistant to the term time arrangements proposed by her, but maintained that the making of such orders would give the parties and the children something to work towards. In the event the children refused to spend the additional time with her, then the mother maintained she would not seek to enforce the court orders or otherwise recommence court proceedings. On the other hand, adopting Mr R’s recommendation, the father and the ICL maintained that no adjustment to the current orders should be made. Instead, they maintained that the children’s time with the mother should be allowed to increase “organically” through the ongoing therapy process. I am satisfied that such a course of action significantly reduces the risk of the children responding to the pressure by refusing to spend time with the mother at all. Such a result would be a tragedy, not just for the children’s relationships with the mother, but also for the children’s relationships with the wider maternal family, including very importantly, P and X.
40This is a significant factor in my decision.
The capacity of each of the parents and any other person to provide for the needs of the children, including emotional and intellectual needs
41I am satisfied that since the 2016 trial, both parties have demonstrated that they are now able to provide for the children’s needs, including their emotional and intellectual needs.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents, and any other characteristics of the children that the court thinks are relevant
42It was not in dispute and I am satisfied that the children are thriving in the father’s care. Both children are progressing very well: academically, behaviourally and socially. Child A received a sports scholarship to enable him to attend high school at High School A. A number of his primary school friends also attend High School A, he has settled in well and is very much enjoying high school. Child B continues to attend [Primary School A] and is making excellent progress. The parties agreed that Child B was very bright. Mr R’s evidence was that her recent Naplan test result was one of the highest he had ever seen. Both children enjoy sport. In the summer months, both children play [Sport A] for their club, as well as at state level. Child A has recently also commenced playing [Sport B]. Both children also play a winter sport.
The attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the parents
43I am satisfied that since the 2016 trial, both the father and the mother have now demonstrated a positive attitude to the children, and to their responsibilities as parents. It was not in dispute and I am satisfied that the parties have benefited greatly from their involvement in the Program and the after-care therapy with Mr R. In general, both parties were very positive about the progress they had made to date, including in relation to improving their communications with each other. Unfortunately, such progress has not extended to either P or M, both of whom remain mistrustful of, and sceptical about, the other household. Both parties indicated that they intended to continue therapy with Mr R in the future on a semi regular basis. I accept Mr R’s evidence that it would assist the children if future therapy sessions were expanded to also include P and M.
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 children
44The parties have been involved in these court proceedings almost continuously since late 2011. Thankfully, the parties were able to reach substantial agreement in relation to the majority of matters and only a very limited number of issues remained for determination by me. The parties consented to two key proposed orders that were intended to limit the likelihood of further parenting proceedings being instituted in the future. Firstly, the parties proposed to continue with family therapy with Mr R in the future. Secondly, the parties proposed to engage with a parenting co-ordinator from Relationships Australia to assist with any co-parenting issues for a period of up to two years. I consider that such orders are entirely appropriate. The parties are to be commended for adopting alternative approaches to resolving any future parenting disputes, rather than simply heading straight back to court.
Any other fact or circumstance the court thinks is relevant
45The father sought that the mother reimburse him the sum of $26,832.50 in relation to the costs incurred by him for his and the children’s participation in the Program. The mother conceded that if she had the ability to make the payment, then it would be appropriate for her to make some reimbursement to the father. However, she maintained that having regard to her financial circumstances, she simply had no ability to do so. Accordingly, the mother opposed the father’s application and sought that it be dismissed.
46The father filed a financial statement on 5 July 2019. At the trial, the father’s unchallenged evidence that there were no significant changes to his financial circumstances from that set out in his financial statement. I am satisfied that:
a)The father works full time as a contractor. He earns approximately $1,690 per week from his employment and also earns $350 per week rental from an investment property. He therefore has a total income of approximately $2,040 per week (gross).
b)M earns approximately $400 per week from her contract business. Aside from this, there was little or no evidence about M’s financial circumstances generally, including whether she has any assets, liabilities or superannuation entitlements.
c)The father has expenses of approximately $2,335 per week, including various expenses met by him for the children. The father does not receive any child support from the mother.
d)The father owns his residence in Suburb A, which he estimated was worth $325,000. The property is subject to a mortgage in the amount of approximately $447,000. In addition, the father owns an investment property in [the Eastern States] which he estimated was worth $525,000. It is subject to a mortgage of approximately $266,000. The father has some other modest assets, including a motor vehicle and furniture and contents. Aside from the mortgages, he also owes approximately $10,000 to a bank and $30,000 to his mother in relation to the payment of the Program costs and family law legal fees. Finally the father has superannuation entitlements of approximately $179,000.
47The mother filed a financial statement on 8 May 2019. At the trial, the mother’s unchallenged evidence that there were no significant changes to her financial circumstances from that set out in her financial statement. I am satisfied that:
a)The mother was previously employed [in the public service] and then later [in administration], before commencing further studies. She has not engaged in any form of remunerative employment for several years. She is a full-time homemaker and parent. She earns $265 per week rental from an investment property. Her total income is $265 per week (gross).
b)P works full time in the [construction] industry and earns approximately $1,900 per week.
c)The mother has expenses of approximately $1,192 per week, including the mortgage on her investment property and repayment of various credit card liabilities. Although the mother does not pay child support to the father for the children, I am satisfied that she meets some limited expenses for the children when they are spending time with her. P meets the very significant shortfall in the mother’s expenses over and above her income. In addition, he meets his own expenses, including the mortgage repayments on his home in Suburb B.
d)The mother owns an investment property in [Suburb C], which she estimated was worth $310,000. The property is subject to a mortgage in the amount of approximately $360,000. The mother has some other modest assets, including a motor vehicle and furniture and contents. Aside from the mortgages, she also owes approximately $25,000 to P’s parents in relation to her family law litigation costs, approximately $15,000 in credit card debts, and approximately $20,000 for a HECS debt. Finally the mother has superannuation entitlements of approximately $49,000.
48Aside from the fact that P owned his residence in Suburb B, there was little other evidence about P’s financial circumstances, for example, about whether P has any other assets, liabilities or superannuation entitlements. However, from the nature of the questions asked by the father of the mother and P in cross‑examination, the father appeared to concede that their household struggled financially – and that was certainly their evidence.
49Effectively, the mother is in a net deficit position, both in terms of her income and expenses, and her assets and liabilities. She is largely dependent upon P for her financial support. Although the father is not in a strong financial position overall, I am satisfied that he is in a much stronger financial position than the mother.
50The father maintained that the mother could return to remunerative employment and use her income to meet the payment to him and/or to service a loan. However, I am not satisfied on the evidence before me that even if the mother could return to work, she would be able to generate sufficient net income to make the payment sought by the father and/or obtain a loan, having regard to her financial position overall and her potential child care costs in relation to X (particularly having regard to the fact that P works away at a remote location for one week out of every two).
51The father also appeared to maintain that as P was meeting the majority of the mother’s expenses, he could also meet any order for reimbursement made against the mother. Appropriately, the father was not prepared to say that P himself should be the subject of an order. However, I accept P’s evidence that he will not assist the mother to make payment if she was so ordered to reimburse the father, and on the available evidence I am also not satisfied that he could afford to do so.
52At the end of the day, I am not satisfied that it is appropriate to make an order as sought by the father, particularly having regard to the mother’s very poor financial circumstances.
53There are no other matters that I consider relevant.
CONCLUSIONS AND PROPOSED ORDERS:
54In short, for the reasons identified by me earlier in these reasons:
a)I am satisfied that it is in the children’s best interests for them to live with the mother for a period of six nights / seven days during the April 2020 school holidays; and during the school terms in accordance with the current arrangements: that is each alternate weekend from after school Fridays to before school Mondays (extending to before school Tuesdays in the event of a long weekend).
b)I am satisfied that the father’s application for reimbursement of his costs of his and the children’s participation in the Program should be dismissed.
55I propose to make the following orders:
1.All previous parenting orders in relation to the children, [Child A] born [in] 2008 and [Child B] born [in] 2011 (“the children”), be discharged.
2.The parties have equal shared parental responsibility for the children.
3.The children live with the father other than when living with the mother.
4.Not by consent, during school terms the children live with the mother each alternate weekend from the conclusion of school on Friday or 3.00pm if a non-school day until the commencement of school on the following Monday or extending to the commencement of school Tuesday in the event Monday is a pupil free day or a non-school day.
5.Not by consent, during the April 2020 school holidays the children live with the mother for a period of five days at times to be agreed between the parties and failing agreement from 5.00pm on Thursday, 16 April until 5.00pm on Wednesday, 22 April.
6.During the inter-term school holidays the children live with the parties on a week-about basis at times to be agreed and in the absence of an agreement with the mother from the conclusion of school at the end of term until 5.00pm on the middle Saturday and thereafter with the father until the recommencement of school and time in terms of paragraph 4 hereof otherwise be suspended for the duration of the school holidays.
7.During the Christmas school holidays the children live with the parties equally and in the absence of agreement as to the specific times on a week-about basis from the conclusion of school until 5.00pm on the following Friday and in the event that either parent nominates to take the children on an interstate or overseas holiday of more than seven days’ duration by 1 November immediately preceding the school holidays and provided the time does not cover both 12 and 18 January, then the nominating parent be able to take the children for a period of up to 14 days and the non-nominating parent thereafter have the same number of days immediately following the children’s return.
8.For the purposes of handover, handovers are to occur at the children’s school but in the event of a non-school day, handovers are to occur at [location A] unless otherwise agreed.
9.For the purposes of Christmas, the children spend time with the parents as follows:
a)Commencing in 2021 and each alternate year thereafter, from 9.00am on Christmas Eve until 3.00pm on Christmas Day with the father and with the mother from 3.00pm on Christmas Day until 6.00pm on Boxing Day; and
b)Commencing in 2020 and each alternate year thereafter, from 9.00am on Christmas Eve until 3.00pm on Christmas Day with the mother and from 3.00pm on Christmas Day until 6.00pm on Boxing Day with the father.
10.For the purposes of Easter the children spend time with the parents as follows:
a)Commencing in 2021 and each alternate year thereafter, from 5.00pm on Easter Thursday to 5.00pm on Easter Saturday with the mother and from 5.00pm on Easter Saturday to 5.00pm on Easter Monday with the father; and
b)Commencing in 2020 and each alternate year thereafter, from 5.00pm on Easter Thursday to 5.00pm on Easter Saturday with the father and from 5.00pm on Easter Saturday until 5.00pm on Easter Monday with the mother.
11.Subject to paragraph 7, on the children’s birthdays, whichever parent the children do not wake up with, the children spend time with that parent for up to six hours at such times as may be agreed but in the event no agreement can be reached, from 1.00pm to 7.00pm that day.
12.On the Mother’s Day weekend, irrespective of the usual weekend arrangements, the children spend time with the mother from 3.00pm Saturday to 9.00am or the commencement of school on the Monday.
13.On the Father’s Day weekend, irrespective of the usual weekend arrangements, the children spend time with the father from 3.00pm Saturday to 9.00am or the commencement of school on the Monday.
14.Both parties shall be at liberty to travel with the children out with the Commonwealth of Australia provided that they give the other parent as much prior notice as possible and no less than one calendar months’ notice.
15.For the purposes of paragraph 14 hereof notice shall be required to be in writing and provide details of the dates of departure and return, the location and contact details of anywhere that the children shall spend an overnight and the names of any persons who will be travelling with the children.
16.In the event that the party receiving the notice is currently holding the children’s passports they shall provide the passports to the notifying parent as soon as practicable who shall retain the passports until they receive any subsequent notification of any intention to travel in terms of paragraph 14 hereof.
17.Within 14 days of the date of these Orders, the father provide to the mother a certified copy of the children’s current passports.
18.Both parties shall do all things necessary and sign all documents necessary to ensure that the children always have a valid Australian passport with a minimum of six months prior to expiry on them and shall jointly apply for any updating passports at the joint expense of them both as required.
19.Both parents facilitate telephone communication with the other parent when the children are in their respective care at the request of the children.
20.Both parents be at liberty to receive information about the children from any child care, education or medical facility attended by the children from time to time and to the extent it may be necessary, both parties authorise the release of that information to the other parent upon that parent’s request and the mother forthwith provide the father with the names of any child care, educational or medical facility the children attend and keep him informed of any new providers.
21.Both parents be at liberty to attend the children’s school at all events that parents would ordinarily attend.
22.In the event of a medical emergency or hospital attendance involving the children, the non-carer parent be notified as soon as practicable but in any event within two hours of the medical emergency or hospital attendance taking place.
23.In the event of any specialist’s appointments involving the children, the non-carer parent be notified as soon as practicable of any appointments, and have the option of attending such appointments.
24.The parties authorise and instruct any medical institution attended by the children to release to each parent such information regarding the children’s medical and dental health, any specialist appointments and/or doctor’s appointments as may be reasonably requested from time to time.
25.Both parties be restrained by injunction and an injunction be granted restraining them from denigrating the other party in the presence or hearing of the children or allowing any third party to do so.
26.Both parties be restrained and an injunction be granted restraining them from discussing Court proceedings with the children or within their presence or allowing any third party to do so.
27.The parties do engage with a parenting coordinator from Relationships Australia at their joint expense to assist with any co-parenting issues for a period of up to two years.
28.In the event that either parent feels that either or both of the children require any further assistance from [Mr R] (“the therapist”) or that the children’s relationship with their parents requires the involvement of the therapist they notify the other party and thereafter both parties make contact with the therapist and follow the reasonable recommendations of the therapist in dealing with the circumstances identified.
29.In the event that the therapist is unavailable or unable to act the parties do seek to jointly appoint an alternate therapist or otherwise approach any therapist nominated by [Mr R].
30.All documents produced by named persons pursuant to subpoena be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from this order.
31.In 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 the Honourable Chief Judge Sutherland, at least 28 days, and no later than 42 days, from today’s date;
b)all parties must contact the Chambers of Honourable Chief Judge Sutherland 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.
32.In the event of an appeal being lodged prior to the expiration period of 42 days, paragraphs 30 and 31 above do not apply.
33.The matter be removed from the Defended List.
34.All outstanding proceedings be otherwise dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
KV
Associate11 MARCH 2020
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