WITHALL, RICHARDSON and POWLES
[2013] FCWA 54
•21 MAY 2013
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: WITHALL, RICHARDSON and POWLES [2013] FCWA 54
CORAM: WALTERS J
HEARD: 27-28 FEBRUARY 2013
DELIVERED : 21 MAY 2013
FILE NO/S: PTW 283 of 2009
BETWEEN: DENNIS WITHALL
Applicant
AND
TANYA RICHARDSON
RespondentAND
KIM POWLES
Intervener
Catchwords:
FAMILY LAW – Parenting orders – Whether children should live with their mother or their father's former de facto partner – Highly complex inter-familial relationships – Where there has been considerable instability in the children's lives – Where interrelationship of mother, father and father's former de facto partner and the significant involvement of the father's former de facto partner in parenting the children caused a confused set of relationships for the children – Where mother suffers from a debilitating health condition and her present husband is her carer – Where father and his present partner are unwilling or unable to have the children live with them on a full-time basis – Where the children have expressed a wish to live with the father's former de facto partner – Opinion of single expert – Where single expert concludes that father's former de facto partner appears to be the adult who has previously most consistently provided a responsible parenting role to the children – Wishes of children – Relevance of contest between the mother and non-parent – Whether significant weight should be attached to parenthood – Reference to recent Full Court decision in Yamada & Cain [2013] FamCAFC 64 – Where mother seeks sole parental responsibility and father's former de facto partner seeks equal shared parental responsibility – Orders to the effect that the parties have equal shared parental responsibility and that the children live with the father's former de facto partner
Legislation:
Family Court Act 1997 (WA), Part V, s 7A, s 66(1), s 66(2), s 66C, s 70A, s 70DA, s 84, s 84(3), s 89(1), s 89AA, s 89AC, s 89AD,
Family Law Act 1975 (Cth), Part VII, s 60CC, s 60B, s 61DA, s 64B, s 65DAA
Category: Not Reportable
Representation:
Counsel:
Applicant: Self Represented Litigant
Respondent: Self Represented Litigant
Intervener: Self Represented Litigant
Solicitors:
Applicant:
Respondent:
Intervener:
Case(s) referred to in judgment(s):
Champness & Hanson (2009) FamCAFC 96
Collu & Rinaldo (2010) FamCAFC 53
Donnell & Dovey (2010) FLC 93-428
Goode & Goode (2006) FLC 93-286
Hungerford & Tank (2007) FamCA 637
Jets & Maker (No 2) (2011) FMCAfam 1473
M & S (2006) FLC 93-313
Marsden & Winch (No 3) (2007) FamCA 1364
Mazorski & Albright (2007) 37 FamLR 518
McCall & Clark (2009) FLC 93-405
McLay & McLay (1996) FLC 92-667
Mills & Watson (2008) 39 Fam LR 52
Moose & Moose (2008) FLC 93-375
MRR v GR (2010) 240 CLR 461
Pender & Haywood [2007] FamCA 152656
Re F – Litigants in Person Guidelines (2001) FLC 93-072
Saxena & Saxena (2006) FLC 93-268
Sealey & Archer [2008] FamCAFC
Taylor & Barker (2007) FLC 93-345
Yamada & Cain [2013] FamCAFC 64
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
Preamble
1This case is about the living arrangements for [Selena], [Jackson] and [Mason] [Withall], who are aged 13, 12 (nearly 13) and 11 respectively.
2The primary question for determination – in the broadest sense – is whether the children should live with their mother or with Ms [Powles] (who is their father's former de facto partner). The children's father, who did not participate in the proceedings, no longer lives with either the mother or Ms Powles. He recognises that it would not be in the children's best interests to live with him.
3Selena and Jackson presently live with Ms Powles in [Country Town P]. Ms Powles is the Manager of [a Local Business].
4Mason lives with the mother in [Country Town O], nearly 600 kilometres from Country Town P.
5Both the mother and Ms Powles consider that it is inappropriate for the children to remain separated from each other. It follows that the Court must determine whether all three children live with the mother or all three children live with Ms Powles.
The mother and Ms Powles were both self represented
6Given that the mother and Ms Powles were self-represented, I was very conscious of the obligation upon the Court to provide a fair trial. I am aware of the guidelines regarding the manner in which a judicial officer should deal with unrepresented litigants, and the associated discussion contained in Re: F – Litigants in Person Guidelines (2001) FLC 93-072.[1] I applied those guidelines during the course of the proceedings, and am comfortable that the trial was fair. In summary:
a)Procedural fairness was afforded to both parties.
b)The “mechanics” of the trial, and their right to cross-examine witnesses, were explained to both parties.
c)Other relevant procedures were explained to the parties as they arose.
d)I explained to the parties that they had the right to object to inadmissible evidence, and explained to them – in very broad terms – the types of evidence that might be considered inadmissible.
e)Where appropriate, I attempted to clarify the substance of their submissions.
f)Where appropriate, I took steps as authorised by the Full Court in Guideline #9 in paragraph 253 of the decision in Re: F – Litigants in Person Guidelines.[2]
[1] See, in particular, paragraphs 209-253 of the decision.
[2] (2001) FLC 93-072.
7In Saxena & Saxena (2006) FLC 93-268, Coleman J emphasised that the type of guidelines set out in the previous paragraph “were no more than the name implies” and that they “derive from the broader considerations of natural justice, implicit in which is the recognition that for a litigant in person to be afforded natural justice and procedural fairness, that litigant must have some appreciation of just what is going on”. His Honour added that the Court must be concerned with “the spirit rather than the strict letter of the guidelines”.
8In the present case, and as I have outlined above, the parties participated in the trial process comfortably, if not particularly confidently. I have no doubt that they fully understood exactly "what was going on" at all times. I also have no doubt that they fully understood the contents of all documents relied upon during the course of the proceedings.
Introduction and background
9In these Reasons, and unless otherwise indicated:
a)all statements of fact comprise findings of fact;
b)I have referred to the parties as the father, the mother and Ms Powles (and I mean them no disrespect by doing so) – because it is less confusing than referring to them as the applicant, the respondent and the intervener;
c)I have not drawn a distinction between proceedings or events in the Magistrates Court, 150 Terrace Road, Perth and proceedings or events in the Family Court of Western Australia (given that the two Courts operate "in tandem" and exercise similar jurisdiction); and
d)I have referred to the Family Court Act 1997 (WA) as the FCA and the Family Law Act 1975 (Cth) as the FLA.
10Although the law now refers to a child "spending time" with a person with whom the child does not live, I shall use the obsolete term "contact" from time to time in these Reasons. I have elected to use the superseded term because it is both more convenient and less grammatically challenging to do so.
11The wider family constellations of the children the subject of these proceedings are moderately complex. In summary, they are as follows:
a)The children (Selena, Jackson and Mason) are the children of the mother and the father.
b)The father later separated from the mother and was involved in a relationship with Ms Powles.
c)Ms Powles already had a child from a previous relationship, [Josh] (who is now 13).
d)The father and Ms Powles then had a child together – Regan (who is now 6).
e)The father and Ms Powles later separated.
f)The father, the mother and Ms Powles have all repartnered.
g)The father now lives with Ms [Brewer].
h)The mother now lives with (and is married to) Mr [Richardson].
i)Ms Powles now lives with (and is married to) Mr [Driscoll].
j)The father and Ms Brewer have a daughter – [Caitlin] (who is now 3).
k)The mother had a daughter after separating from the father but prior to meeting and marrying Mr Richardson. The mother's daughter is [Erin] (who is now 6).
l)Ms Brewer, Mr Richardson and Mr Driscoll all have children from previous relationships:
i)Ms Brewer has three children (aged 14, 13 and 10), who live with her, the father and Caitlin;
ii)Mr Richardson has two children (aged 12 and 6), who live with him, the mother, Erin and Mason; and
iii)Mr Driscoll has three children (aged 13, 11 and 4), who live with him, Ms Powles, Josh, Regan, Selena and Jackson.
12The father, Ms Brewer and the children in their household live in [Country Town T].
13The mother, Mr Richardson and the children in their household live in Country Town O.
14Ms Powles, Mr Driscoll and the children in their household live in Country Town P.
15Country Town T is approximately 200 kilometres south-east of [Suburb M].
16Country Town O is approximately 330 kilometres south-east of Suburb M].
17Country Town P is approximately 650 kilometres east of Suburb M, just north of [Country Town D].
18Country Town O is approximately 125 kilometres east of Country Town T. They are both approximately 590 kilometres from Country Town P.
19It follows from the above that Selena and Jackson (who live with Ms Powles in Country Town P) currently live a very significant distance from Mason (who lives with his mother in Country Town O).
Significant dates
20The father was born in October 1978; and the mother in December 1982. They commenced a relationship in 1998 and separated on a final basis in 2004. They never married. There are three children of their relationship – Selena, Jackson and Mason – who are, of course, the children the subject of these proceedings. Selena was born [in] 1999, Jackson [in] 2000 and Mason [in] 2002.
21The father commenced a relationship with Ms Powles in early 2004, and later moved into her home in Country Town T. As set out above, Ms Powles has a son from a previous relationship, Josh (who is 13). Josh has minimal contact with his father.
22The father and Ms Powles separated in December 2009. Their son, Ryan (who is six) lives with Ms Powles and has contact with the father.
23The father commenced a relationship with Ms Brewer some time prior to separating from Ms Powles. They have a daughter, Caitlin (who is three). As indicated above, the father, Ms Brewer , Caitlin and Ms Brewer's three children from a previous relationship live in Country Town T.
24After the mother and the father separated, and prior to commencing a relationship with Mr Richardson, the mother had a child, Erin, who is now six. There is some confusion as to the identity of Erin's father. The mother commenced a relationship with Mr Richardson in 2008. They married on 28 January 2012. As explained above, the mother, Mr Richardson, Erin and Mr Richardson's two sons live together at Country Town O Farm. Mason lives with them.
25Ms Powles commenced a relationship with Mr Driscoll in 2011, after moving to Country Town P. They married on 4 May 2013. As explained above, Mr Driscoll has three children from a previous relationship. Ms Powles, Mr Driscoll, Josh, Regan and Mr Driscoll's three children live together in Country Town P. Selena and Jackson have lived with them since 19 April 2012.
Movements
26Doing the best that I can with the evidence available to me, it seems that the children have moved about considerably since the husband and the wife separated in 2004.
27When the father and the mother separated in 2004, the children lived with the mother in [Country Town X]. The father commenced cohabitation with Ms Powles in Country Town T.
28In late 2004, the mother moved from Country Town X to [Country Town W] (so that the children could be closer to the father and Ms Powles). During the 2004/2005 summer holidays, there were discussions between the mother and Ms Powles as to whether the children should live with the father and Ms Powles so that the mother could have "a year to herself". The mother said that this discussion came about because she proposed to study at TAFE and obtain meaningful employment.
29The father later collected the children from the mother's home so that they could commence living with him. According to the mother, she did not agree to the father taking the children at this time.
30The father, the mother and Ms Powles later entered into a parenting plan, which provided for the children to live with the father and Ms Powles. The Court has not seen a copy of the parenting plan. The mother said that she signed the parenting plan without reading it. From that time onwards, the children spent alternate weekends, and some other occasions, with the mother.
31In 2005, the father and Ms Powles moved – with the children – to a farm between Country Town T and [Country Town G]. The move was related to the father's work. For her part, the mother moved from Country Town X to Country Town W for her employment. According to the mother, she visited the children at the farm regularly, and stayed with the father and Ms Powles.
32In September 2005, the mother moved into Ms Powles’ house in Country Town T to be closer to the children (who were living on the farm). Ms Powles was living on the farm with the father.
33Some time later, the mother moved into the farm house and began living with the father, Ms Powles and the children. This arrangement continued until at least June 2006.
34In the winter of 2006, the mother moved to [Country Town H] with Erin (who had been born in April 2006). The mother lived with her mother.
35A short time later, the mother moved back to the farm and resumed living with the father, Ms Powles and the children. She stayed there until at least the end of 2006 (after the birth of Ryan, the son of the father and Ms Powles). Around this time, the mother went on a holiday to [Coastal Town A] with the father, Ms Powles and the children.
36During the holiday in Coastal Town A, there was an altercation between the mother and the father, as a result of which the mother left. A short time later, she moved (with Erin) to [Coastal Town D], to live with her mother. The mother remained in contact with the children while she was in Coastal Town D.
37The mother spent Easter in 2007 with the father and the children, returning to Coastal Town D after approximately 4 days. According to the mother, the father and Ms Powles had "split up" at that time, although they later reconciled.
38The mother asserted that the father and Ms Powles were separated between Easter 2007 and mid 2007, and that Ms Powles took all the children to Country Town D at that time. She also asserted that Ms Powles had arranged to meet her at the airport with the children, but the police became involved and asked Ms Powles to return the children to the father.
39A few weeks later, the mother (and Erin) resumed living with the father and Ms Powles . According to the mother, they had reconciled by this time.
40Later in 2007, the mother moved to Country Town T, to live independently of the father and Ms Powles. She asserted that there was an informal care arrangement whereby the children moved between her home and the farm where they lived with the father and Ms Powles. In broad terms, sometimes the mother would stay at the farm, and sometimes the children would stay with her in Country Town T.
41In late 2007 or early 2008, the adults' relationships began to fracture. The father commenced a relationship with Ms Brewer and the mother commenced a relationship with Mr Richardson. At much the same time, the father and Ms Powles arranged for Selena to stay with the mother. According to Ms Powles, this was some form of "punishment" for unacceptable behaviour on Selena's part. The mother said it was because "they could not control her … and Selena would refuse to go to bed". A short time later, all three children stayed with the mother for approximately one week. According to the mother, the children stayed with her because the father and Ms Powles had separated again and Ms Powles and her children had gone to Country Town P to be with her mother. Ms Powles later returned from Country Town P and resumed living on the farm with the father. The mother returned the children to them there.
42In early to mid 2008, the mother moved to Country Town H (to live on her father's farm). The children stayed with the father and Ms Powles. Thereafter, the mother travelled backwards and forwards between Country Town H and the farm occupied by the father and Ms Powles. According to Ms Powles, the mother stayed with them on and off while she lived in Country Town H. She added that the mother came to look after the children for one week while she and the father were away in Suburb M in August 2008, and again in September 2008.
43Some time later, the mother moved to Country Town G. She then returned to Country Town T, living separately from the father and Ms Powles. She returned to Country Town T to be close to the children. According to the mother, the father and Ms Powles were separated at this time. She added that in very late December 2008 and early January 2009 there were altercations between the father and Ms Powles. It appears that Ms Powles obtained a violence restraining order against the father at or around this time.
44A short time later, the mother took the children to [Coastal Town F] to spend time with their grandmother. Josh accompanied them.
45According to the father he went to collect the children from the mother in Country Town T on 21 January 2009, but the children were not there. They were in Coastal Town F with the mother. The father asserted that he and Ms Powles had not been consulted regarding the mother's desire to take the children to Coastal Town F. The father contacted the police, who told him that the children were safe and with the mother.
46On the following day, 22 January 2009, the father filed an initiating application seeking orders to the effect that the children live with him, that they spend time with the mother as agreed and that the he and the mother have equal shared parental responsibility for them.
47On 2 February 2009, the mother was ordered to return the children to the father.
48A family consultant met with the mother and the father (via telephone link) on 25 February 2009. Both parties indicated that they wanted the children to live with them. The father proposed that the children have contact with the mother as agreed. He suggested that the children should spend each alternate weekend with the mother, to the extent that practicalities might permit such an arrangement. For her part, the mother expressed concerns about the father's alleged substance abuse.
49According to Ms Powles, the mother communicated with the children by telephone until approximately May 2010. According to the mother, she spent time with the children during the school holidays.
50In September 2009, Caitlin (the daughter of the father and Ms Brewer) was born.
51The nature of Ms Powles’ relationship with the father at that stage is unclear, but it seems that the relationship ended, finally, on 28 December 2009. The children remained living with Ms Powles.
52In January 2010, the mother made attempts to obtain legal representation. For reasons that are unclear, she was unsuccessful in that endeavour. Ms Powles obtained legal representation from [A Legal Firm] of Country Town W. She said that, around that time, the mother agreed to sign a letter stating that the children could reside with Ms Powles. The mother's version is that Ms Powles asked her to sign such a letter, which she refused to sign.
53In the early part of 2010, the children remained living with Ms Powles. Both the mother and the father were living elsewhere.
54In May 2010, the mother, the father and Ms Powles had discussions regarding the children's living arrangements. It was agreed that the children would move to Coastal Town F to live with the mother.
55Orders were made on 16 June 2010 to the effect that the children were to live with the mother and spend time with the father and Ms Powles as agreed. Ms Powles was given leave to intervene in the proceedings. Thereafter, the children moved to Coastal Town F to live with the mother. They remained there for approximately nine months.
56In or about July 2010, the mother started "talking over the phone" with Mr Richardson.
57A family consultant met with the mother, the father and Ms Powles (via telephone link) on 12 August 2010. No agreement was reached as to the long-term arrangements for the children. Ms Powles told the Family Consultant that she had been the children's primary carer for the last five years.
58A further conference with a family consultant was held on 8 September 2010 (again, via telephone link). It was apparent that both the mother and Ms Powles wanted the children to live with them. The father said that he was no longer in a position to care for the children and did not have a strong view as to whether they should live with the mother or with Ms Powles – given that he regarded both as good parents with safe homes.
59On 21 December 2010, an order was made for the preparation of a family report.
60In early 2011, the mother was diagnosed with fibromyalgia. Around this time, Mr Richardson moved into the mother's home with his two sons. As a result, there were six children in the home.
61In or about April 2011, Selena returned to live with the father in Country Town T. Jackson and Mason continued to live with the mother.
62Approximately one month later, Ms Powles moved to Country Town P .
63In mid 2011, the mother, Mr Richardson and the children living with them moved from Coastal Town F to Country Town O, near Country Town G (which, as I have indicated, is approximately 125 kilometres from Country Town T).
64It would appear that the father spent periods with Ms Powles in Country Town P around this time.
65In July 2011, Selena returned to live with the mother in Country Town O.
66A family conference was listed for 15 August 2011. It proceeded in a rather disjointed fashion. Among other things, the mother indicated that she wanted the father's time with the children to be supervised because of his drinking habits. She asserted that he had been intoxicated during the previous school holidays. She also said that the children (all of whom were then living with her) were "doing really well". For her part, Ms Powles indicated that she wanted all three children to live with her. The father advised the family consultant that he was still unsure of his position regarding the question of with whom the children should live.
67Between August 2011 and April 2012, the children continued to live with the mother. Ms Powles continued to spend time with them, as did the father. Comparatively minor disputes arose from time to time, but the children's living arrangements did not alter significantly. According to Ms Powles, however, Selena became progressively unhappy living with the mother and in early 2012 she threatened to "kill herself" if Ms Powles did not "get her out of" the mother's home. During the same period (August 2011 to April 2012), Ms Powles asserted that the mother had not adequately dealt with certain medical issues that had arisen in relation to the children. As a result, she (Ms Powles) arranged for them to obtain treatment. The mother continued to voice concerns about the father's ongoing issues with alcohol.
68The mother married Mr Richardson on 28 January 2012.
69The children spent two weeks with Ms Powles during the April 2012 school holiday period. Towards the end of the holiday period, Mr Driscoll and his son [Jesse] (who lived with Ms Powles and his father) were involved in a serious motorcycle accident. They were hospitalised in Suburb M, with Jesse spending some time in ICU.
70Ms Powles travelled to Suburb M to be with Mr Driscoll and Jesse, leaving the children in the care of Ms Powles’ employee, [Jeremy Brown] (who was described by the single expert witness as "a male nanny"), and her mother.
71On 19 April 2012, the mother drove to Country Town P to pick up the children at the end of the school holiday period. Selena refused to return with the mother, who then contacted the police.
72When the police attended, they advised the mother that certain serious allegations had been made. The police then contacted the Department for Child Protection ("DCP"), Country Town D. Departmental officers interviewed Selena and Jackson the following day (20 April 2012). DCP then arranged for Selena and Jackson to remain in Country Town P for a short time at least. Mason left with the mother.
73On 24 April 2012, the mother was advised that she could collect Selena and Jackson from Country Town P on the following day. She then contacted Selena and Jackson to inform them that she would be picking them up. Both of them responded that they did not want to go with her. In spite of the children's comments in that regard, a changeover was arranged for 25 April 2012 at the Country Town D police station. As matters transpired, however, Ms Powles’ mother was not available to hand the children over to the mother until the following day (26 April 2012). Thus, when the mother arrived, the children were not delivered to her.
74The Country Town D police were unable to assist the mother without appropriate orders (such as a recovery order).
75The mother then went to DCP Country Town W, where she discussed recent events with a DCP officer. Among other things, the question of Selena obtaining some mental health support was discussed.
76Around the same time, Mr [Braxton] (Ms Powles’ employee) took Jackson and Selena to the Country Town D Community Mental Health Service.
77On 21 May 2012, Ms Powles filed a notice of abuse.
78On 28 May 2012, an interim order was made to the effect that Selena and Jackson live with Ms Powles, and that an independent children's lawyer be appointed. Mason was to continue to live with the mother.
79On 11 July 2012, Ms Powles filed an application in a case seeking orders to the effect that Mason live with her on an interim basis. The application came before the Court on 16 July 2012. It was dismissed.
80On 30 August 2012, a single expert witness was appointed. The single expert witness ([Mr Perkins) later prepared his report, which is dated 2 November 2012.
81The independent children's lawyer filed a notice of ceasing to act on 25 January 2013. It follows that the children were not represented at the trial, which took place on 27 and 28 February 2013.
Orders sought
82The father did not participate in the trial.
83In broad terms, the mother seeks orders to the effect that –
a)she have sole parental responsibility for Selena , Jackson and Mason ;
b)the children all live with her;
c)the children have no contact with Ms Powles ;
d)the children have contact with the father on one weekend per month (unless the father has consumed alcohol, in which case the contact is not to take place); and
e)Ms Powles use her best endeavours to ensure that [Regan] has contact with the father at the same time as Selena, Jackson and Mason are having contact with him.
84In broad terms, Ms Powles seeks orders to the effect that –
a)the mother, the father and Ms Powles have equal shared parental responsibility for the children;
b)the children all live with Ms Powles ;
c)the children have limited, daytime contact with the mother until they "feel safe and regain trust in [the mother's] care and affection";
d)Mr Richardson’s contact with the children be supervised "by an unbiased third party"; and
e)the children's school holiday time otherwise be divided equally among the father, the mother and Ms Powles.
85Some less controversial orders were agreed between the mother and Ms Powles, such as an order to the effect that, in the event of a dispute relating to the children arising, the father, the mother and Ms Powles must attend dispute resolution before commencing proceedings in a court of law.
Documents relied upon
86The mother relied upon the following affidavits:
a)her affidavits sworn 29 February 2012, 7 May 2012, 1 June 2012, 6 June 2012 and 13 February 2013; and
b)affidavit of [Amanda Richardson] sworn 1 February 2012;
87During the trial, the mother indicated that she did not propose to rely upon a statutory declaration obtained from [Ronald Nash]. She also indicated that she did not propose to call her husband, Mr Richardson.
88Ms Powles relied upon the following affidavits:
a)her affidavit sworn 28 August 2012;
b)affidavit of [Hanna Gardiner] sworn 29 May 2012;
c)affidavit of [Joshua Braxton] sworn 22 May 2012;
d)affidavit of [Angus Gibson] sworn 15 March 2012; and
e)affidavits of [Karen Spencer] sworn 22 May 2012 and 20 March 2013.
89A large number of exhibits were tendered by the parties – comprising police, schooling and DCP records. I have perused these documents briefly, but have not discussed them in detail in these Reasons because the parties made no attempt to refer to specific documents within the exhibits.
Parenting Orders – The Law
90This generic summary of the law is based on similar summaries in my decisions in Mills & Watson (2008) 39 Fam LR 52 and Jets & Maker (No 2) (2011) FMCAfam 1473.
91Applications concerning children of parents in Western Australia who are not and have never been married (or, more accurately, applications for parenting orders) are dealt with in Part V of the Family Court Act 1997 (WA) – which, as I have explained, I shall call the FCA. Part VII of the Family Law Act 1975 (Cth) – which, as I have also explained, I shall call the FLA – is the comparable Commonwealth legislation.
92In this summary, and unless otherwise indicated, subsequent references will be to the provisions of the FCA.
93The Full Court carefully analysed the structure and effect of a significant portion of Part VII of the FLA in Goode & Goode (2006) FLC 93-286 ("Goode"). It began by identifying the types of orders that fall within the category of "parenting orders", and by referring to FLA s 64B (FCA s 84), which includes, among other things, a list of the matters with which a parenting order may deal. For example, orders allocating parental responsibility for a child, specifying the person with whom a child is to live or defining the time a child is to spend (or the communication a child is to have) with a person, are all parenting orders.
94Parenting orders dealing with the allocation of parental responsibility for a child can also deal with "the allocation of responsibility for making decisions about major long-term issues in relation to the child”.[3] Such issues include (but are not limited to) important questions regarding a child's education, religious and cultural upbringing and health. A proposed change to a child's name, or proposed changes to a child's living arrangements which would make it significantly more difficult for the child to spend time with one of his or her parents, are also regarded as major long-term issues. But a parent's decision to form a relationship with a new partner is not, of itself, a major long-term issue in relation to a child ─ although such a decision could involve a major long-term issue if the new relationship requires the parent to move to another place (thereby making it more difficult for the child to spend time with the other parent).[4]
[3] FCA s 84(3).
[4] See the definition of "major long term issues" in s 7A of the FCA.
95If a parenting order provides that parents (or others) are to share parental responsibility for a child, and if the exercise of that responsibility involves the making of a decision about a major long term issue regarding a child, then the relevant decision must be made jointly. Further, an order for equal shared parental responsibility requires those in whose favour the order has been made to consult with each other in relation to any relevant major long term issue, and to make a genuine effort to come to a joint decision.[5] Such consultation is not required in relation to issues that are not major long-term issues, and a parent with whom a child is spending time will not normally need to discuss minor matters (such as what a child eats or wears) with the other parent.[6]
[5] FCA s 89AC; see also Pender & Haywood [2007] FamCA 152656.
[6] FCA s 89AD.
96As has long been the case, the child’s best interests remain the paramount consideration in the making of parenting orders. That principle is set out in s 66A:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
97The objects of Part V, and the principles underlying it, are set out in s 66. They are important.
The objects of Part V are:[7]
… to ensure that the best interests of children are met by:
•ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
•protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
•ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
•ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of the children.
[7] FCA s 66(1).
98The principles underlying these objects are:[8]
… that (except when it is or would be contrary to a child's best interests):
•children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
•children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
•parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
•parents should agree about the future parenting of their children; and
•children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
[8] FCA s 66(2).
99Aboriginal or Torres Strait Islander children not only have a right to enjoy their culture, but they also have the right to:
a)“maintain a connection” with and “develop a positive appreciation” of it; and
b)be provided with “the support, opportunity and encouragement necessary to explore the full extent of that culture” (consistent with the child's age and developmental level, and the child's views).[9]
[9] FCA s 66(3).
100Given that all the expressed objects of Part V are directed towards ensuring that a child’s best interests are promoted, and given that the court must always regard the child's best interests as the paramount consideration in deciding whether to make a particular parenting order, the question of how a court determines what is or may be in a child's best interests is crucial. The subject is dealt with in s 66C, which directs the court to consider a relatively lengthy list of factors before determining what is in a child's best interests.[10] The list is divided into two parts, the first comprising "primary considerations", and the second comprising "additional considerations".
[10] If the court is considering whether to make an order with the consent of all parties, it is not required to have regard to all or any of the listed factors (although it may do so if it wishes) ─ FCA s 66C(6).
101The primary considerations are set out in s 66C(2). They are:
a)the benefit to the child of having a meaningful relationship with both of the his or her parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
102The additional considerations are set out in s 66C(3). They include:[11]
[11] This list is not intended to be comprehensive. It is simply a summary of the factors in FCA s 66C(3). The actual factors set out in FCA s 66C(3) – or, more accurately, those of them that are relevant – will be considered later in these reasons.
a)any views expressed by the child, and any factors that the court thinks are relevant in determining the weight that should be given to those views;
b)the nature of the child’s relationship with each of his or her parents and other relevant people (including grandparents and other relatives);
c)the willingness and ability of each parent to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
d)the likely effect of any changes in the child's circumstances (including as a result of any separation from a parent, sibling or grandparent with whom the child may have been living);
e)the practical difficulty and expense of a child spending time with and communicating with a parent (and the effect of such difficulty and expense on the child's right to maintain personal relations and direct contact with both parents on a regular basis);
f)the capacity of each of the parents, and of any other relevant person, to provide for the child's needs (including his or her emotional and intellectual needs);
g)the child's maturity, sex, lifestyle and background (including the child's culture and traditions);
h)in the case of an Aboriginal or Torres Strait Islander child, the child’s right to enjoy his or her indigenous culture;
i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the parents;
j)any relevant family violence, or
k)any family violence order;
l)whether it would be "preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child"; and
m)any other fact or circumstance that the court considers relevant.
103Section 66C(4) elaborates upon two of the factors referred to above ─ namely, the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent and the attitude to the child (and to the responsibilities of parenthood) demonstrated by each of the parents. It requires the court to focus upon each party’s ‘track record’ as a parent. Particular regard must be had to events that have happened (and circumstances that have existed) since the parties separated.[12] One of the matters that the court is obliged to consider is the extent to which each parent has fulfilled, or failed to fulfil, his or her obligation to maintain the child.[13]
[12] FCA s 66C(5).
[13] FCA s 66(4)(c).
104Although the primary considerations are listed before the additional considerations, they will not always ‘outweigh’ them.[14] Clearly, the primary considerations "should be accorded particular importance in determining what order will best promote the interests of the child", but they will not always determine the outcome of the proceedings.[15] Further:[16]
Not only must the "additional" considerations be taken into account, but the two "primary" considerations themselves may tend in different directions.
… (It is not necessary to determine whether other factors serve to) "displace" one of the primary considerations. Rather, (the Court is) obliged to take into account all of the relevant considerations identified in the legislation, giving each of them such weight as (it thinks) appropriate in arriving at the result most likely to promote the child's best interests. … (Particular emphasis must be placed on the primary considerations) not only because the legislature has identified them as "primary" but also because they are manifestly of the utmost importance in determining what outcome will best advance the child's best interests.
[14] Champness & Hanson (2009) FamCAFC 96 at [101].
[15] Marsden & Winch (No 3) (2007) FamCA 1364.
[16] Marsden & Winch (No 3) (2007) FamCA 1364 [77-8].
105In considering the first of the primary considerations (being the benefit to a child of having a meaningful relationship with both of his/her parents) the "preferred" approach is to "consider and weigh the evidence at the date of the hearing and determine how, if it is in a child's best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents", although an approach which involves examining evidence of the nature of the child's relationship as at the date of the hearing in order to make findings based on that evidence and to frame orders accordingly may also be relevant in certain circumstances.[17] Irrespective of the approach to be adopted, the benefit to a child of a meaningful relationship with his/her parents is not a legislatively defined presumption, or even an assumption.
[17] McCall & Clark (2009) FLC 93-405 at [117]-[122].
106The Full Court in Goode summarised the above process as follows (referring to the FLA provisions then in effect):[18]
… in deciding to make a particular parenting order, including an order for parental responsibility, the individual child's best interests remain the paramount consideration … and the framework in which best interests are to be determined comprises the factors in sections 60CC.... The objects and principles contained in section 60B provide the context in which the factors in section 60CC are to be examined, weighed and applied in the individual case.
[18] Goode & Goode (2006) FLC 93-286 at [10].
107Notwithstanding the Full Court's reference to a "framework", and to the context in which the factors comprising that framework are to be considered, a trial judge who is obliged to determine competing applications for parenting orders does not start with a blank sheet of paper.[19] Relevantly, certain conditional presumptions (relating to parental responsibility) may apply. Generally speaking, however, and subject to those presumptions, the court may make such parenting order as it thinks proper.[20]
[19] See, in a different context, McLay & McLay (1996) FLC 92-667 at 82,901.
[20] FCA s 89(1).
108When making a parenting order, the court must apply a presumption that it is in the child's best interests for his or her parents to have equal shared parental responsibility.[21] Such a presumption, although clearly important, says nothing about the amount of time that the child should spend with each parent.
[21] FCA s 70A.
109The presumption relating to equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent (or somebody living with a parent) has abused the child (or another relevant child), or has engaged in family violence.[22] In interim proceedings, the application of the presumption is less strict: it does not apply if the court considers that "it would not be appropriate in the circumstances" for it to be applied.[23]
[22] FCA s 70A(2) and the definition of "family violence" in s 5.
[23] See s 70A(3); it is important to note, however, that the Full Court in Goode at [78] held that the discretion in FLA s 61DA(3) (FCA s 70A(3)) should not be exercised "in a broad exclusionary manner, but only in circumstances where limited evidence may make the application of the presumption, or its rebuttal, difficult."
110In circumstances where the presumption relating to equal shared parental responsibility would otherwise apply, it may be rebutted "by evidence that satisfies the court that that it would not be in the best interests of the child" for the parents to have equal shared parental responsibility.[24]
[24] FCA s 70A(4).
111Where parents are ordered to have equal shared parental responsibility for their child (whether as a result of the application of the presumption referred to above, or otherwise[25]), the court must go on to consider whether the child spending equal time with each parent would be both reasonably practicable[26] and in the child's best interests. If it is both of these things, then the court must consider whether it should make an order to that effect.[27] If the court comes to the conclusion that an order for equal time should not be made, then it must then go on to consider whether the child spending "substantial and significant time"[28] with each parent would be both reasonably practicable[29] and in the best interests of the child. If it is both of these things, then the court must consider whether it should make an order to that effect.[30]
[25] See, for example, Goode at [46] and [47], and Pender & Haywood [2007] FamCA 1526 at [44].
[26] How a court determines "reasonable practicality" is the subject of s 89AA(5).
[27] FCA s 89AA(1).
[28] "Substantial and significant time" is defined in FCA s 89AA(3).
[29] How a court determines "reasonable practicality" is the subject of FCA s 89AA(5).
[30] FCA s 89AA(2); see also Goode at [43] and [44].
112In MRR v GR (2010) 240 CLR 461, the High Court said (referring to the comparable FLA provisions):
13.Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order (for equal time). ... A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. ... If such a finding cannot be made, sub-sections (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-section (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent. ...
15Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. (Emphasis added.)
113The sequence in which the court should consider the various provisions discussed above (and other relevant matters) is not clear from Part V itself. In Taylor & Barker (2007) FLC 93-345, however, the Full Court said (referring to the comparable FLA provisions):[31]
… (Given) that the concept of the child's best interests is the determinative factor in the application of so many of the provisions of Part VII, and given that section 60CC(1) provides that in determining what is in the child's best interests, the court must consider the matters set out in subsection (2) ("primary considerations") and subsection (3) ("additional considerations") of that section, it would seem only logical that the court make findings regarding the matters contained in those subsections (so far as they are relevant in a particular case) before attempting to apply any other provision in Part VII in which the determinative factor is the subject child's best interests.
[31]Taylor & Barker (2007) FLC 93-345 at [62]. See also Sealey & Archer [2008] FamCAFC 142.
114The Full Court in Taylor & Barker added that failure to follow the above approach (which it clearly regards as "the logical approach") does not necessarily amount to an appealable error. Such an error would arise, however, if a trial judge failed to give adequate reasons or did not have regard to "the matters which the legislation requires must be considered".[32]
[32] (2007) 37 FamLR 518 at [63].
115In Mazorski & Albright (2007) 37 FamLR 518, Brown J dealt with the “additional considerations”, prior to dealing with the primary considerations. In Moose & Moose (2008) FLC 93-375, Boland J (with whom May J agreed) approved of such an approach, saying (in effect) that, in certain cases, it may help to focus the court's attention on relevant matters to be determined under s 66C(2) if it first considers and makes findings about relevant factors under s 66C(3).[33]
[33] See also Collu & Rinaldo (2010) FamCAFC 53 at [335].
116Having summarised the effect of the amendments to FLA Part VII in paragraph 65 of its judgment in Goode, the Full Court then described the "legislative pathway" that "must be followed" in interim proceedings in paragraph 82. There seems to be no reason, however, why the same pathway ought not to be followed at trial, where final orders are sought.[34]
[34] See, for example, Hungerford & Tank (2007) FamCA 637 and M & S (2006) FLC 93-313 at 81,378.
117The relevant steps under the FCA (as modified for a final hearing, and taking into account the High Court's decision in MRR v GR) are as follows:
a)Identify the parties’ competing proposals.
b)Identify the issues in dispute in the proceedings.
c)Make relevant findings in relation to the facts.
d)Consider the relevant s 66C factors and (if possible) make findings about them.
e)Decide whether the presumption in s 70A (that equal shared parental responsibility is in a child's best interests) applies.
f)If the s 70A presumption applies, then consider whether it has been rebutted (because its application would not be in the child's best interests).
g)If the s 70DA presumption applies, and has not been rebutted, then consider both the following questions:
i)Is it in the best interests of the child to spend equal time with each parent?
ii)Is it reasonably practicable that the child spend equal time with each parent?
118If both the above questions are answered in the affirmative, then consider making an order for equal time – but the court is not obliged to make such an order.
119If the s 70A presumption applies and has not been rebutted, but equal time is not in the child's best interests, or is impracticable, then consider both the following questions:
a)Is it in the best interests of the child to spend substantial and significant time with the other parent?
b)Is it reasonably practicable that the child spend substantial and significant time with the other parent?
120If both the above questions are answered in the affirmative, then consider making an order that the child spend substantial and significant time with the other parent – but the court is not obliged to make such an order.
121In considering whether to make an order for equal time (or, alternatively, an order for substantial and significant time), the court is not required to assume that it is desirable that such an order should be made, or that the making of such an order is the "default" position (as it were) under the FCA. Instead, the court must concern itself with the reality of the situation of the parents and the child; it must make a practical assessment of whether equal time (or, alternatively, substantial and significant time) is both feasible and in the best interests of the child.
122If the s 70DA presumption has been rebutted or does not otherwise apply, or if it does apply but neither equal time nor substantial and significant time are both feasible and in the best interests of the child, then issues regarding the child's living arrangements and the time that the child is to spend with each of the parents are "at large and to be determined in accordance with the child's best interests" (or, in other words, as a result of consideration of the objects and principles in s 66 and the factors set out in s 66C).[35]
[35]Goode at [65.8].
123Throughout the entire process, the court must bear in mind that the child's best interests "remain the overriding consideration",[36] and that the child's best interests are to be “ascertained by a consideration of the objects and principles”[37] in s 66 and the primary and additional considerations in s 66C.
The family report
[36]Goode at [65.11].
[37]Goode at [65.9].
124[Alex Perkins] was appointed the single expert witness in this matter. His primary qualifications are in Social Work. He interviewed the parties, relevant adults and the children on 4, 5 and 26 October 2012. His report (which I shall call "the family report") is dated 2 November 2012. It is annexed to his affidavit sworn the same day.
Mr Perkins’ observations
125Under the heading "Background", Mr Perkins summarised the history of the relationships between the parties – which he described as "complicated". Among other things, he recorded the following:
a)The mother and the father have known each other since their primary school years in Country Town X . Their relationship began in the late 1990s, and the mother was only 16 years of age when she became pregnant with Selena.
b)The father commenced a relationship with Ms Powles while he was still living with the mother. When he started living with Ms Powles, he continued to have "an on/off affair" with the mother.
c)There was considerable instability in the lives of the children (and the adults) -as described under the heading "Movements" above.
d)Although in the past the mother has had "major concerns" about the father's excessive alcohol use, she believes that he has probably cut down recently. Ms Powles had similar concerns, but she also felt that it is no longer of "major concern".
e)Both the mother and Ms Powles "have alleged that previously [the father] showed some aggression towards them (the mother more so than Ms Powles), however neither seems to view that as a major problem issue now".
f)The mother and the father have some health problems that are relevant to consider:
[The mother] suffers from fibromyalgia which causes ongoing pain in joints, a lot of fatigue and some cognitive deficits for her. The illness has led to Mr [Richardson] being a carer for her. [The father] has been diagnosed as suffering from a tumour on his brain that has caused some symptoms of back pain, enlarging some facial features and his hands. He has recently commenced home-based chemotherapy treatment.
g)DCP carried out a risk assessment in 2011 in relation to Mr Richardson "because he spent time in prison as a result of child pornography". DCP ultimately assessed him as not posing a major risk to the children.
h)The various proposals of the parties were these:
[The mother] wishes for [Jackson] and [Mason] to live with her ... and to have regular contact with [the father]. She believes that [Selena] would prefer to live with [the father] and [the mother] would not oppose that. She is not supportive of the children having contact with Ms [Powles] as she views Ms [Powles] as causing the children to become unsettled. [The mother] also reviews the children as unlikely to receive adequate educational input if they live at [Country Town P]as schooling is done via School of the Air. [The father] would ideally like to have the children live with him, but he feels there is not enough space at his home. He doubts [the mother] has the capacity to properly care for the children, so out of [the mother] and Ms [Powles] he would prefer the children live with Ms [Powles] and see him regularly. Ms [Powles] wishes for [Selena] [Jackson] and [Mason] to live with her and to have regular contact with their parents.
126The mother told Mr Perkins that she was diagnosed with fibromyalgia in early 2011. She said that it can affect her significantly "with high pain in her joints, as well as a cognitive impact where she forgets some things". Mr Richardson is required to assist her with some physical personal tasks. Although she helps out on the farm when she can, the fibromyalgia "can be very debilitating". She takes a variety of medications to deal with the condition.
127The mother expressed "a fairly negative view" of Ms Powles, and suggested that Ms Powles had, in the past, told the children that their mother did not love them. The mother suggested that Ms Powles had manipulated the children against her. Mr Richardson expressed similar views to Mr Perkins.
128Mr Perkinscontinued:
[The mother] acknowledged that the history of her relationship with [the father] and the involvement of Ms [Powles] in the raising of her children had led to a confused set of relationships for the children. She admitted that in the past she had moved around quite a lot, but she put that down as due to needing to get away from [the father's] aggression or alcohol use. [The mother] denied that she was prone to a transient lifestyle and she suggested that Ms [Powles] has not been any more stable than her in recent years. She disagreed with the proposition ... that the children suffer from abandonment issues due to [the mother] having left them in the care of Ms [Powles] in the past. ...
129In relation to Mr Richardson accessing child pornography, Mr Perkins wrote:
When asked about the issue of Mr [Richardson] accessing child pornography in the past, [the mother] expressed that he did it to sell it to gain funds and not for any personal gratification. She sees what is on the computer they use now and there is never any inappropriate material. She stated that Mr [Richardson] had done a sex offender program in prison. [The mother] put the view that he had acknowledged he made a big mistake and he does not hide what he did. As far as she is concerned Mr [Richardson] poses no risk to any of the children.
130The mother accepted that the children seem confused as to their relationships with the various adults and children in the family systems in which they are involved. She told Mr Perkins that, in her opinion, the children need counselling to help them better manage the various connections they have to their half siblings. Mr Perkins added:
When asked who she feels the children are most attached to, [the mother] expressed that since April 2012 she is not sure and she feels confused about that issue.
131In relation to Mr Richardson, Mr Perkins said that he "defined his occupation as a full time carer" of the mother. Otherwise, he helps his uncle run the farm on which he, the mother and the children with them live. Mr Richardson confirmed that the house they live in is a two-bedroom dwelling with an enclosed veranda. It follows that the children are required to share a room when they visit.
132Mr Richardson endeavoured to explain his involvement with child pornography by saying that, after he separated from the mother of his children, he felt depressed and, at the same time, "needed to earn money to deal with the lack of contact with his children". He said that, with the encouragement of a friend, "he did a once only download of pornography from the Internet to sell it". He denied that he had ever looked at the material and asserted that he did not know what was in it. He admitted that his actions comprised "a major mistake and error of judgment".
133After referring to the sex offender program that Mr Richardson had completed, Mr Perkins wrote:
Whilst his rationale for committing the offence is hard to fathom – given the extreme moral and legal risks associated with it, his commentary and attitude in terms of learning how to avoid any further problems seemed reasonable.
134In Mr Richardson's opinion, "Selena would not be best living with [the mother]". He believes that she and Jackson should live with the father, but Mason should continue to live with the mother "as he was making good progress".
135Under the heading "Summary for [the mother]", Mr Perkins wrote:
[The mother] wants to provide well for the children. She commenced motherhood at a young age and whether she ever fully developed the required maturity for full-time parenting seems open to question. It seems that she has generally relied on the support of others to help her manage the care of the children when she has had them with her. The allegations of excessive physical discipline or verbal abuse of children in the care of [the mother] and Mr [Richardson] has not been substantiated.
[The mother] has previously been prone to a lot of moving around. She says that is no longer the case which remains to be seen. She has partnered with a male who pleaded guilty to serious offences related to child pornography. However the information available would suggest Mr [Richardson] does not pose a risk of sexual abuse to the children.
[The mother's] role as the mother figure to [Selena], [Jackson] and [Mason] has been variable. It seems that for multiple reasons in the past she has been willing to let the children be raised by Ms [Powles] and/or Ms [Powles] and [the father]. She has struggled to manage [Selena]'s behaviour in the past two years or so. [The mother] says she is now ready and able to care for all three children full-time. Given that she is currently suffering from a debilitating health condition, that seems open to question and the writer would predict Mr [Richardson] would probably shoulder a lot of the parenting of the children. He already has a lot to deal with caring for his child, working on the farm and caring for [the mother].
136The father told Mr Perkins that he is not currently working in his usual role as a farm hand due to the impact of his brain tumour and the treatment associated with it. He also told Mr Perkins that he had previously had problems with binge alcohol drinking. He added that he does not now feel that he needs to use alcohol (and that he has replaced it "by keeping busy").
137The father has been dealt with at least three drink-driving offences – in 1999, 2002 and 2011 (when he had his licence suspended for 30 months). When he saw Mr Perkins, he was reliant upon Ms Brewer for transport.
138According to the father, the mother's involvement with the children was limited from an early stage, and she was often "not interested in parenting". He told Mr Perkins, however, that her current care of the children is "basic but adequate".
139The father does not regard Mr Richardson as posing a risk to the children (notwithstanding his past involvement with child pornography).
140The father was generally more positive about Ms Powles’ parenting capacity than he was about the mother's parenting capacity.
141In relation to the allegations of family violence, the father admitted that he and Ms Brewer had had "some disagreements and some pushing and shoving had occurred a long time ago". He denied that he had been violent towards either the mother or Ms Powles.
142The father said that it was "not an option" for the children to live with him, because there is simply not enough room in the accommodation that he shares with Ms Brewer. As for the father's view regarding with whom the children should live, Mr Perkins wrote:
[The father's] main wish is that he gets to see [the children] regularly in the school holidays. [The father] feels that the children could cope with living in [Country Town P] and he would not object if they lived there with Ms Powles. He does not view it as viable for them all to live with [the mother] in [Country Town O].
143In relation to Ms Brewer, Mr Perkins wrote:
Ms [Brewer]'s perspective on the parenting arrangements for the children is that [they] cannot live with [her] and [the father] due to a lack of space and the complicated dynamics that so many children in their home would create. She believes it would be better if the children visited [the father] one at a time so they can each get his individual attention. ...
Ms [Brewer] acknowledged that Ms [Powles] has been a significant parental figure to the children in the past, but she suggested that the children would probably be best all living together with [the mother] as she is their biological mother and [the mother] is trying to do the best for them.
144Under the heading "Summary for [the father]": Mr Perkins wrote:
[The father] is keen to have ongoing involvement with his children. It is likely that when he is sober and available he can support his partner in the parenting of their children. However his history would suggest that previous to his recent health problems he left most of the daily care of the children to his partners due to him either working long hours or drinking alcohol heavily. There is sufficient information in the reporting of [the mother], Ms [Powles] and the children within the court documents to show that violence from [the father] towards [the mother] and Ms [Powles] occurred around the children when he used alcohol to excess. The comments from Ms [Brewer] for this report indicate that his excess drinking has had a major negative impact on her and the children in their home.
Due to (the father's] current health problems and treatment regime, his capacity to provide for the children, is likely to be significantly diminished. His partner does not wish to have the children living with them full-time.
145Ms Powles told Mr Perkins that she proposes to continue to live in Country Town P for the next five years. Her opinions, and those of Mr Driscoll, are set out in the family report, and there is no need to reproduce them in these Reasons.
146Under the heading "Summary for Ms Powles ", Mr Perkins wrote:
Ms Powles has been significantly involved in the care of Selena, Jackson and Mason since they were very young. She does not appear to have any lifestyle or personal functioning issues that would pose a risk to the children. Her partner seems to be a reasonable person. He has quite a handful with his own children, but it seems he can manage them. Mr Driscoll's children seem to get on reasonably well with Selena and Jackson, and with Ms Powles’ two biological children.
Ms Powles appears to be child focused and aware of the importance of supporting the children to ensure they receive educational input, have access to extra curricular activities and to therapeutic support if needed. The writer is not convinced that the home environment of Ms Powles is unhygienic. The [Local Business] is not the most ideal environment for adolescents to be working in and there do need to be some conditions imposed on what work they do there.
147Mr Perkins summarised his interviews with Selena, Jackson, Mason and Erin on pages 16 to 20 of the family report. There is no need to reproduce Mr Perkins’ comments in these reasons, although the following are of significance:
•[Selena] feels strongly and positively connected to Ms [Powles] and [the father]. She has a connection with [the mother] but she views her mother in a less positive light than the other two adults ... [and] believes Ms [Powles] has been the principal mother figure to her because [the mother] has moved around so much in the past and not always been available.
•... [Selena] seems convinced that [Erin] suffers mistreatment in the care of [the mother] and Mr [Richardson] and for various reasons [Erin] only tells [Selena] about it, so no other responsible person would be aware of it. [Selena] expressed a negative view of Mr [Richardson] because he swears a lot, gets angry easily and is rude.
•She has always felt safe at [Country Town P].
•[Selena] rated Mr [Driscoll] positively.
•In both interviews [Selena] stated that she wanted to live with Ms [Powles] and have regular visits to her father and mother. That was because she views Ms [Powles] as her mother figure and Ms [Powles] has been most reliable in the past.
•[Jackson] gave a mixed view on spending time or living with [the mother].
•In [Jackson’s] view Mr [Richardson] is prone to getting angry a lot.
•[Jackson] advised that he does not hear directly from [Erin] of [any possible mistreatment of [Erin] ] happening, but [Selena] says that it happens.
•[Jackson] advised that he is very happy living in [Country Town P] with Ms [Powles].
•He described Ms [Powles] as caring a lot for the children and being an affectionate person to them.
•[Jackson] advised in both interviews that he wishes to live with Ms [Powles] . That is because she has been the main carer for the children for most of their lives and [Jackson] feels that being with her is where he belongs. ... [He added that] he was happy to visit his mother, but he did not want to stay overnight. That was to avoid being exposed to Mr [Richardson] possibly getting really angry at the children.
•[Mason] started the interview with comments that nothing was good where he was living with [the mother] because it was boring and he had no one to play with. He stated that he spends half the time stuck in bed as a punishment for bad behaviour [and added that] [Erin] is also in bed a lot for the same reason.
•[Mason] reported that he does not get on with Mr [Richardson].
•[Mason]'s commentary about previous time spent with Ms [Powles] was positive. He stated that it was fun to be with her. He gets on with Mr [Driscoll] and Mr [Driscoll]'s children.
•[Mason] stated that he wishes to live with Ms [Powles] because she is nicer than [the mother] and she feels like she is his mother. He was not keen about [the mother] yelling so much. He believes she gets stressed a lot now because she suffers from fibromyalgia. ... [He added that] he would be happy to see his father and mother in the school holidays if he lived with Ms [Powles]. He stated that he strongly misses [Selena] and [Jackson] and he wants to live with them and Ms [Powles] .
•[Erin] made positive comments about Mr [Richardson] who she calls "dad".
•[Erin] made positive comments about [Selena], [Jackson] and [Mason] . She misses [Selena] and [Jackson] and would like to see them more often than just for a short time when [the mother] sees them at [the father's] home when a handover of [Mason] occurs. [Erin] made positive comments about Ms [Powles]. She made the comment that she would like to live with [Selena], [Jackson] and [Mason]. She thought the best way for that to happen would be for [the mother], Mr [Richardson], Ms [Powles] and all the children to live in the one place together.
•All of the children were asked about any possible exposure to inappropriate adult material or any persons attempting to involve the children in inappropriate behaviour. They all stated that they had not experienced any such situations.
148In the process of preparing the family report, Mr Perkins inspected the DCP file relating to the children. He summarised its contents at pages 20 to 22 of the family report. There is no need to reproduce that summary in these Reasons, although the following comments are of significance:
•DCP concluded that after a Safety and Well-being Assessment (SWA) Mr [Richardson] could be viewed as being at the lower end of the scale of risk because no direct sexual contact between him and a child occurred. ... He was open and engaging with DCP and had made it known in the community.
•There is a SWA which starts on 3 May 2012 ... in relation to the incidents and allegations on 20 April 2012 when [the mother] went to collect the children in [Country Town P]. ... The DCP child protection worker who interviewed [Selena] and [Jackson] assessed that [Selena] was manipulating the situation as she did not want to return to [Country Town O] and some of the information [Selena] provided did not add up. [Jackson] was seen as choosing to remain in [Country Town P] to support [Selena]. ... The DCP worker viewed [the mother] and Mr [Richardson] as protective and concerned for the children's well-being. It was viewed as reasonable then for [the mother] to collect [Selena] and [Jackson] and take them back to [Country Town O].
•DCP assessed that allegations of abuse or neglect by [the mother] or Mr [Richardson] of either [Selena], [Jackson], [Mason] or [Erin] could not be substantiated.
•DCP noted that [Selena], [Jackson] , [Mason] and Erin had each stated that they would like to live with either [the mother] or Ms [Powles] at some stage and it appeared that the children had torn loyalties.
•DCP spoke to the CAMHS worker Ms [Fraser] who had seen [Selena] and [Jackson] [in mid 2012]. Ms [Fraser] told DCP the children appeared to have attachment confusion due to having lived in so many different places with so many different carers. Ms [Fraser] told DCP that she had found Ms [Powles] to be quite dramatic and emotionally unstable and ... she had concerns for the safety and well-being of [Selena] and [Jackson] in Ms [Powles’ care. A significant factor was that Ms [Fraser] believed that [Selena] and [Jackson] had been influenced by Ms [Powles] with what they said. ...
Mr Perkins’ "responses to terms of reference"
149Mr Perkins’ responses to the various terms of reference are set out on pages 22 to 26 of the family report. There is no need to reproduce those responses in these Reasons, although the following comments are of significance:
•[The mother] and Ms [Powles] seem to have a fairly negative attitude towards each other and [they] may find it difficult to cooperate with each other to any major degree. They each view the other as unsuitable to have the children living with them.
•... the writer would not discount that on occasion Mr [Richardson] and [the mother] may have struggled to cope with the children and they may not always be able to manage their behaviour in the most ideal ways.
•... the writer has some doubts [the mother] has the capacity to fully meet the needs of the children in a consistent and ongoing manner.
•... [the father] and Ms [Brewer] feel they do not have sufficient space to be able to accommodate the children and in the writer's view they do not want to have the children live with them full-time.
•Ms [Powles] seems to be the adult who has previously most consistently provided a responsible parenting role to the children. She has been in their lives from when they were very little and in their eyes she has a mothering role.
•Ms [Powles] seems to have the least number of physical and personal problems to prevent her providing parenting input to the children. Out of the three parties to these proceedings Ms [Powles] appears to be the most mature in terms of parenting attitude.
•The writer is not convinced that [Selena], [Jackson] or [Mason] would be at risk of abuse from [the mother] or Mr [Richardson]. However it may be that on occasion if [they] are overloaded with the demands of their life situation they may resort to less than ideal discipline or discipline that is overly focused on punishment of one sort or another.
•The children do not appear to be at risk of abuse from Ms [Powles] or Mr [Driscoll]. The writer does not agree with the overall conclusions of [Ms Fraser] regarding Ms [Powles] as the information obtained by that worker from [Selena], [Jackson] and Ms [Powles] was gained in the context of a highly stressful situation.
•The children do not appear to be at risk of abuse from [the father]. However the writer would not rule out that they could on occasion be at risk of exposure to excess alcohol use by him and possibly from exposure to some high-level conflict between [the father] and Ms [Brewer] when [the father] has been drinking. However if the children are not living with [the father] then the risk of exposure is fairly low.
•[The mother's] capacity to promote the relationship between the children and Ms [Powles] seems low. She currently has a low opinion of Ms [Powles] and resents that [Selena] and [Jackson] have been living with Ms [Powles] rather than [with her].
•Ms [Powles] seems likely to promote the relationship between the children and [the father] to a reasonable degree.
•Ms [Powles’] capacity to promote the relationship between the children and [the mother] will to some degree be determined by the outcome from the court proceedings. However based on her commentary and attitude and interview, she appears likely to promote the relationship to some degree.
Recommendations
150After referring to the geographical locations of the parties (which Mr Perkins regards as limiting the options that can be considered) and observing that the possibility of the children living with the father is not a realistic option, Mr Perkins wrote:
In considering [the mother] and Ms [Powles] as options, it is fairly clear that it would not be advisable for [Selena] to live with [the mother] due to the risk of high conflict between them. It seems that [Jackson] wishes to be wherever [Selena] is and [Mason] wishes to live with both of his siblings.
151In broad terms, Mr Perkins concludes that the best option "seems to be that the children all live together with Ms Powles " and have the opportunity to spend time with the mother and the father during school holidays (and at other times that may be considered feasible). Mr Perkins’ reasons for reaching this conclusion are these:
•Ms [Powles] seems to have been the most consistent person to care for the children.
•The children all recently indicated that is what they wished for.
•Ms [Powles] appears to be the most mature of all the parties and to have a higher capacity to provide for all of their needs.
•Ms [Powles] does not have any major physical illness affecting her as [the mother] and [the father] do.
152Mr Perkins sets out conditions that "should be required" if the children are to live with Ms Powles. Those conditions are to the effect that Ms Powles must ensure that the children –
a)will have a suitable adult educator who can work with them, on each school day, on their required schoolwork;
b)are not involved in any activity at the Local Business where they would come into contact with alcohol or serve alcohol (and it would be preferable if the children do not serve anything, but only assist in cleaning or food preparation in the kitchen); and
c)do not remain on the premises of the Local Business after 4.30 pm.
153Mr Perkins added:
Whatever is ultimately decided, the writer would suggest that placing all of the children with [the mother] should not occur as it is unlikely she could cope with them all for more than a short period of time before major problems occurred. [Selena] should definitely not be placed in the care of [the mother].
202Still, the mother's case is that the children should sever their contact with Ms Powles (who, obviously, is not a parent of the children). For reasons that I have discussed elsewhere in this judgment, such a course of action would not be in the children's best interests.
203I accept that Ms Powles is willing and able to facilitate, and encourage, a close and continuing relationship between the children and both of their parents. I am concerned, however, that she has encouraged or allowed the children to call her "Mum". In my opinion, the children should reserve such a term for their mother: their family relationships are already extraordinarily complex, and all parties should take considerable care to ensure that the children clearly understand the nature of those relationships and the identity of their parents and siblings. Just as importantly, it can do the children (and in particular Selena) no harm to overtly recognise and give respect to their parents. In other words, I am of the view that the children have an emotional need to understand where they fit (or, perhaps belong) within the complex web of family constellations that surround them. I propose to grant an injunction restraining all parties from causing or permitting the children to call anyone other than their parents "Mum" or "Dad" or similar terms of endearment.
204Overall, this consideration favours Ms Powles’ proposals over the mother's proposals.
Effect of changes in child's circumstances
205Selena and Jackson are likely to be highly resistant to any orders compelling them to live with the mother and Mr Richardson. Significant conflict between them and the mother is likely to result.
206Mason is likely to handle the transition to living with Ms Powles (and Selena and Jackson) without significant discomfort.
207I accept that the children have half siblings and/or step-siblings living in each relevant household and that a move to a different household would require a significant readjustment from each child's point of view. Similarly, the change of residence would mean a change of schools, (or school arrangements) physical surroundings and social milieu. There is no evidence before me, however, that would lead me to conclude that the children will suffer unduly or be significantly disadvantaged by such a change. Regrettably, the fact of the matter is that their lives have already been significantly disrupted on a number of occasions in the past.
208I am satisfied that Ms Powles is a mature and responsible person, who will be willing and able to obtain any assistance that she may need to help Mason cope with a change in residence.
209I am less satisfied that the mother would be willing and able to obtain any assistance that she may need to help Selena and Jackson cope with a change in residence. In the past, the mother has tried to "muddle through", as it were – with very mixed success. She is certainly more mature now than she was when she chose to place the children in the care of either the father or Ms Powles. In the broadest of broad terms, however, there can be no doubt that there would be far less negative consequences for the children if Mason were to join Selena and Jackson with Ms Powles than if Selena and Jackson were to join Mason with the mother.
210Given the direction provided by both the mother and Ms Powles to the effect that the children should remain together, this consideration clearly favours Ms Powles’ proposals over the mother's proposals.
Practical difficulties and expense associated with contact
211There can be no doubt that Ms Powles lives a very great distance from both the mother and the father. If the children were to have no contact with Ms Powles, this consideration clearly favours the mother's proposals over Ms Powles’ proposals (given that the mother and the father live comparatively close to each other).
212I accept, however, that Ms Powles is likely to promote the relationship between the children and the mother and the father, and that she will abide by orders providing for contact between the children and their parents. That is not to say, of course, that Ms Powles has always promoted the relationship between the children and their parents, but I accept that she is capable of doing so if the orders so provide.
213Overall, this consideration favours the mother's proposals over Ms Powles’ proposals.
Capacity to provide for the child's needs
214I accept and adopt Mr Perkins’ summary of the parents' and Ms Powles’ capacity to provide for the needs of the children, including their emotional and intellectual needs:
a)Although the mother appears to be motivated to have significant involvement with the children (and although Mr Richardson appears supportive of the mother's motivation in that regard), the mother has "felt unable or unwilling" to be the children's primary carer on occasions in the past. She has also relocated a number of times. As a result, the children's attachment to her is "mixed".
b)The mother suffers from fibromyalgia, and Mr Richardson is her carer. The illness has had a significant impact on her capacity to physically care for the children in her household.
c)As indicated above, the mother and Mr Richardson have struggled to cope with the children at times, and they "may not always be able to manage their behaviour in the most ideal ways".
d)The father has effectively conceded that, in a practical sense, he does not have the capacity to provide for the children's needs if they were to live with him.
e)Ms Powles "seems to be the adult who has previously most consistently provided a responsible parenting role to the children". She has been involved with them for most of their lives and "in their eyes, she has a mothering role".
215Mr Perkins wrote:
Ms [Powles] seems to have the least number of physical and personal problems to prevent her providing parenting input to the children. Out of the three parties to these proceedings, Ms [Powles] appears to be the most mature in terms of parenting attitude. She does live in a semi-remote area, but she has taken steps to ensure the children access educational input as necessary and she ensures they can access out of school activities, as well as counselling. ...
216Overall, this consideration favours Ms Powles’ proposals over the mother's proposals.
Maturity, lifestyle and background of the child and the parties
217Beyond the matters already discussed in these Reasons, I do not consider this to be a relevant consideration.
Aboriginal/Torres Strait Islander culture
218Children who are Aboriginal or Torres Strait Islander children have a right to enjoy their culture, including the right to enjoy Aboriginal or Torres Strait Islander with others who share the same culture. The Court is required to consider the likely impact on that right of any parenting orders that it proposes to make.
219None of the parties presented any evidence relating to this consideration, and hence I am unable to determine its relevance. It is apparent, however, that none of the parties regarded it as a relevant consideration.
Attitude to the child and to responsibilities of parenthood
220In my opinion, the mother and the father have not always accepted the responsibilities of parenthood, and they have not always given appropriate weight to the children's best interests. Both have been unwilling or unable to prioritise the need for stability in their children's lives, which have become progressively more complex – at least in terms of personal and family relations.
221The mother, the father and Ms Powles have failed to set clear boundaries in their relationships with each other, further confusing the children and adding to the dysfunctionality of their living arrangements. They have acted, all too frequently, in an immature and irresponsible fashion.
222Mr Perkins has recommended that Ms Powles could benefit from counselling to help her establish and maintain clear and firm boundaries in her relationship with the father. He emphasised that the re-establishment of the relationship between Ms Powles and the father would cause further confusion for the children. I accept his evidence in that regard, and agree with his opinion to the effect that it would not be in the children's best interests for Ms Powles to resume an intimate or emotionally intimate or challenging a relationship with the father at any time in the foreseeable future.
223As described above, the mother, the father and Ms Powles have all repartnered. All would no doubt hasten to reassure the Court that their current relationships are stable and long-term. Only time will tell whether such is the case. In that regard, I note that the Court did not have the benefit of receiving evidence from either Mr Richardson or Mr Driscoll. Nor did the court hear from Ms Brewer, and the father did not participate in the trial. Still, I accept that Mr Perkins had the opportunity to meet and speak with Mr Richardson, Ms Brewer and Mr Driscoll. His observations of them are adequately recorded in the family report.
224I am not persuaded that this consideration favours either the mother or Ms Powles at this point in time. The reality is, however, that the children are the children of the mother and the father but, as Mr Perkins wrote, the adult who has most consistently provided a responsible parenting role for them (particularly Selena and Jackson) is Ms Powles.
Family violence considerations
225I have discussed the issue of family violence elsewhere in these Reasons. I agree with Mr Perkins’ conclusion to the effect that the children are unlikely to be at risk of abuse from either the mother and Mr Richardson or Ms Powles and Mr Driscoll. Mr Perkins was concerned about the father's excessive consumption of alcohol in the past and the children's exposure to conflict between the father and Ms Brewer when the father has been drinking. In his opinion, however, the risk of the children being exposed to inappropriate behaviour (or being at risk in other forms) is "fairly low" for so long as the children do not live with the father and Ms Brewer.
226Put another way, there is no unacceptable risk of the children being subjected to or exposed to family violence if they were to live with either the mother or Ms Powles. Nor is there an unacceptable risk of the children being subjected to or exposed to family violence if they spend time with the father – but if the children were to live with the father, what is currently an "acceptable" risk would become unacceptable.
227As I have expressed elsewhere in these Reasons, however, and notwithstanding the comments that I have recorded above, I cannot confidently conclude that the children would not be at risk of abuse, neglect or family violence in the mother's household where Mr Richardson remains a member of that household. There is a risk, but is not an unacceptable one. I would add that, in my opinion, Mr Perkins had every right to be sceptical of Mr Richardson's "explanation" for accessing and possessing child pornography. It beckons the mother to be equally sceptical. To use a colloquialism, she should watch him like a hawk.
228Overall, this consideration favours Ms Powles’ proposals over the mother's proposals.
Avoiding further proceedings
229This is an important consideration, given the lengthy history of disruption to the children's lives and the parties' failures to prioritise or lack of success in prioritising the best interests of the children over the pursuit of their own emotional needs or desires.
230For the reasons discussed elsewhere in this judgment, it is inevitable, or almost inevitable, that further proceedings will be instituted by one party or the other if the children are placed with the mother. This is particularly the case with Selena who, I find, will not readily accept an arrangement whereby she is compelled to live with the mother (and is likely to enlist the support of the other children in her endeavours to cause herself to be placed with the adult or adults with whom she feels most comfortable).
231From a practical point of view, if the children were to live with the mother, each contact period with the father or Ms Powles would be fraught with tension from the mother's point of view (and, to a lesser extent, from the point of view of the father and Ms Powles) in that there is every likelihood that Selena – and, perhaps, Jackson and Mason as well – would refuse to return to the mother's care. The mother would then feel obliged to initiate proceedings to compel the return of the children.
232This consideration clearly favours Ms Powles’ proposals over the mother's proposals. I have no doubt that the orders that are least likely to lead to the institution of further proceedings relating to the children are those that I propose to make pursuant to these reasons.
Any other fact or circumstance considered relevant
233The only other matter that I consider relevant in the context of the current proceedings is the fact that Ms Powles is not the children's mother. I have dealt with this subject, however, under the heading Meaningful relationship above.
Conclusion as to most satisfactory proposal
234In my opinion, and
a)bearing in mind that the children's best interests remain the overriding consideration;
b)taking into account the objects and principles set out in FCA s 66; and
c)having regard to my discussion of the s 66C considerations above,
I conclude that Ms Powles’ proposals are more likely to be in the children's best interests than the mother's proposals.
Parental responsibility
235Ms Powles sought an order to the effect that she, the mother and the father have equal shared parental responsibility for the children. The mother sought an order to the effect that she have sole parental responsibility for the children.
236I have concluded that it is in the best interests of the children to live with Ms Powles. In those circumstances, I see no reason to make an order for anything other than equal shared parental responsibility. I am satisfied that the parties are capable of consulting with each other in relation to decisions to be made about major long-term issues affecting the children or any of them, and I am satisfied that they are capable of making a genuine effort to come to a joint decision about such issues.
237None of the parties suggested that equal shared parental responsibility could not work for the benefit of the children, and the history of the parties' relationships with each other demonstrates that they have been able to communicate successfully at various times in the past.
238The Court is, of course, required to apply a presumption that it is in the children's best interests for their parents (and, in this case, Ms Powles) to have equal shared parental responsibility for them. The presumption does not apply if there are reasonable grounds to believe that the mother, the father or Ms Powles (or those who live with them) have engaged in family violence or otherwise abused the children or another child in the household. The presumption – if it does apply – can be rebutted by evidence to the effect that it is not in the best interests of the children for an order for equal shared parental responsibility to be made.
239In all the circumstances, and whether or not the presumption applies, I am of the view that it is in the children's best interests for their parents and Ms Powles to have equal shared parental responsibility for them.
240Given that I have concluded that it is in the children's best interests for an order for equal shared parental responsibility to be made, I am obliged to consider whether the children spending equal time with each of their parents (and with Ms Powles) would be in their best interests and whether such an arrangement would be reasonably practicable. Given the distance that the parties live from each other, an order for equal time is clearly not "reasonably practicable". The only sensible arrangement is for the children to live with Ms Powles (which arrangement I have concluded is in their best interests) and to spend holiday time with the mother and the father.
241The Court must also consider whether it is both in the children's best interests and reasonably practicable for them to spend substantial and significant time with the mother and the father. Again, given the distance that the parties live from each other, an order for the children to spend substantial and significant time with both the mother and the father is not reasonably practicable. I am not unaware, however, that (in general terms) the law considers that it is in the children's best interests for the children to spend time with a parent with whom they are not living on days that do not fall on weekends or holidays, as well as on days that do fall on weekends or holidays. Such an arrangement allows the parent spending time with the children to involve himself or herself in the children's daily routine and other occasions or events that are important to the children (or important to the parent).
242I have considered all the above matters and have concluded that the orders which are most likely to promote the children's best interests are those set out below.
Orders
243The orders that I propose to make are these:
1)All previous parenting orders be discharged.
2)The mother, the father and Ms Powles ("the parties") have equal shared parental responsibility for the children Selena, Jackson and Mason ("the children").
3)The children live with Ms Powles.
4)The mother spend time and communicate with the children as follows –
a)one third (being the first third) of the first, second and third term school holidays in each year, commencing as soon as practicable after the completion of the last day of term;
b)one third of the long summer school holiday period in each year, being the first third in the 2013/14 long summer school holiday period (and in each third year thereafter), the second third in the 2014/15 long summer school holiday period (and in each third year thereafter) and the final third in the 2015/16 long summer school holiday period (and in each third year thereafter); and
c)as otherwise agreed between the mother and Ms Powles from time to time in writing.
5)The father spend time and communicate with the children as follows –
a)one third (being the middle third) of the first, second and third term school holidays in each year, commencing as soon as practicable after the completion of the children's time with the mother;
b)one third of the long summer school holiday period in each year, being the middle third in the 2013/14 long summer school holiday period (and in each third year thereafter), the final third in the 2014/15 long summer school holiday period (and in each third year thereafter) and the first third in the 2015/16 long summer school holiday period (and in each third year thereafter); and
c)as otherwise agreed between the father and Ms Powles from time to time in writing.
6)For the purposes of these orders, all school holidays shall be deemed to commence at 5.00 pm on the last day of school and conclude at 5.00 pm on the day immediately prior to the commencement of school, whether or not the first school day is a pupil‑free day.
7)The party with whom the children are to spend each block period must collect the children (at the commencement of the said block period) from the party with whom the children spent the previous block period, so that, for example, during the first, second and third term school holidays in each year the mother must collect the children from Ms Powles at the commencement of the mother's contact period with the children, the father must collect the children from the mother at the commencement of the father's contact period with the children and Ms Powles must collect the children from the father at the conclusion of the father's contact period with the children.
8)The parties must permit the children to contact the other parties by telephone, email, Facebook or other means as requested by the children.
9)The parties must permit the other parties to contact the children, at all reasonable times, by telephone, email, Facebook or other means.
10)Ms Powles , the mother and the father must:
a)advise the other parties immediately in the event that any of the children suffers any serious illness or injury during the child's time with that party; and
b)authorise any medical or other health care professional upon whom the child may attend from time to time to communicate with the other parties regarding the child's condition and/or requirements.
11)The father, his servants and agents be and are hereby restrained by injunction from:
a)abusing, insulting, belittling, rebuking or otherwise denigrating the mother and/or Ms Powles ; and
b)discussing these proceedings,
to, with or in the presence or hearing of the children or any of them, and from permitting any other person to do so.
12)The mother, her servants and agents be and are hereby restrained by injunction from:
a)abusing, insulting, belittling, rebuking or otherwise denigrating the father and/or Ms Powles ; and
b)discussing these proceedings,
to, with or in the presence or hearing of the children or any of them, and from permitting any other person to do so.
13)Ms Powles, her servants and agents be and are hereby restrained by injunction from:
a)abusing, insulting, belittling, rebuking or otherwise denigrating the mother and/or the father; and
b)discussing these proceedings,
to, with or in the presence or hearing of the children or any of them, and from permitting any other person to do so.
14)For 24 hours immediately prior to the commencement of any time spent with the children (or any of them), and during all such time spent, the father be restrained by injunction from consuming or otherwise being under the influence of alcohol.
15)The mother, the father and Ms Powles each be restrained by injunction from causing or permitting the children, or any of them, to fail to attend any school day (or part thereof) whatsoever, unless:
a)a medical certificate has been obtained, confirming that the child/children should not attend school;
b)the other parties provide their prior written agreement (including by email or SMS text message) to the child/children missing school; or
c)where the agreement of the other parties could not be obtained, the Principal of the school attended by the child/children confirms that, in his or her opinion, the child/children should not attend school because of significant matters relevant to the health or well-being of the child/children or other children attending the school.
16)Ms Powles be restrained by injunction from changing the children's principal place of residence without providing the mother and the father with 30 days prior written notice of her intention in that regard – such notice to include the address and landline telephone number of the proposed, new principal place of residence and the names of all adults and children who will be living in the proposed, new principal place of residence.
17)All parties must keep each other advised, at all times, of their respective addresses and telephone numbers (including landline and mobile numbers).
18)Ms Powles must sign all such documents and do all such acts and things as shall be necessary to authorise and permit the children's school to provide school notices, information, newsletters and the children's school reports directly to the mother and the father.
19)In the event of the children's school failing or refusing to provide school notices, information, newsletters and the children's school reports directly to the mother and the father –
a)Ms Powles must keep the mother and the father informed of the children's progress at school, and must provide the mother and the father with copies of the children's school reports as soon as practicable after receipt of the said reports; and
b)Ms Powles must give the mother and the father not less than four weeks notice (or, if four weeks notice is impossible, as much notice as is practicable in the circumstances) of all parent/teacher night appointments, carnivals, sporting events or other parent involved school activities and co-curricular activities involving the children.
20)All parties and the said children must attend, participate in and complete, as soon as practicable, an appropriate parenting orders program (similar to, for example, the GordonCare Stand By Me – Parent Orders Program previously conducted by GordonCare in Victoria) or other appropriate course or service (“the Program”) at such organisation as shall be specified by the Director of the Mediation and Counselling Service of the Family Court of Western Australia or his/her nominee, and, further, each party must:
a)sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the Program;
b)pay and otherwise be responsible for his/her share of all costs associated with the Program;
c)abide by all reasonable requests of any person directly or indirectly responsible for the conduct, administration or facilitation of the Program;
d)without affecting the generality of the above requirement – as and when required satisfactorily participate in and complete all recommended parts of the Program (including, but not limited to, some or all of the following: any relevant intake course or process, parent group, children’s group, individual sessions for parents and children, child focused mediation and/or Children’s Contact Service); and
e)provide an appropriate certificate of completion of the Program to the other parties.
21)Notwithstanding any previous orders of the Court, Ms Powles and the father, and their servants and agents, be and are hereby restrained by injunction from:
a)addressing or referring to the mother by any derogatory, insulting or belittling name or nickname in the presence or hearing of the said children or any of them;
b)addressing or referring to the mother by any name or nickname other than “mother”, “mum”, “mummy” or any variation thereof in the presence or hearing of the said children or any of them;
c)referring to Ms Powles or any person other than the mother as the said children’s “mother”, “mum”, “mummy” or any variation thereof;
d)recording, registering or noting (in school, medical, State Government, Commonwealth Government or other documents or records of any nature whatsoever) Ms Powles or any person other than the mother as the said children's mother;
e)causing or permitting the said children, or any of them –
i)to address or refer to the mother by any derogatory, insulting or belittling name or nickname;
ii)to address or refer to the mother by any name or nickname other than “mother”, “mum”, “mummy” or any variation thereof; and
iii)to address or refer to Ms Powles or any person other than the mother as “mother”, “mum”, “mummy” or any variation thereof; and
f)causing or permitting any other person –
i)to address or refer to the mother by any derogatory, insulting or belittling name or nickname;
ii)to address or refer to the mother by any name or nickname other than “mother”, “mum”, “mummy” or any variation thereof in the presence or hearing of the said children or any of them; and
iii)to refer to Ms Powles or any person other than the mother as the said children’s “mother”, “mum”, “mummy” or any variation thereof.
22)Subject to paragraph (23) below, the mother, the father and Ms Powles be restrained by injunction from causing or permitting the children to consult a psychiatrist, psychologist and/or counsellor without the prior written consent of the other parties or without giving the other parties at least 28 days notice in writing of his or her intention to do so – such notice to include the name, address and telephone number of the relevant psychiatrist, psychologist and/or counsellor, the reason for the proposed consultation and a written authority addressed to the psychiatrist, psychologist and/or counsellor authorising that person to release to the other parties such particulars concerning the children as may be reasonably required.
23)Notwithstanding paragraph (22) above, the mother, the father and Ms Powles must sign all such documents and do all such acts and things as shall be necessary to:
a)cause the children to receive counselling or other therapeutic intervention through Country Town D Mental Health or such other psychological, mental health or other counselling organisation as shall be recommended by the children's general practitioner ("the Counselling"); and
b)ensure that the children continue to receive the Counselling until whichever of the following first occurs –
i)the children's general practitioner indicates that the Counselling is no longer required; or
ii)the mother, the father and Ms Powles agree that the Counselling is no longer required.
24)For so long as the children do not attend school in a dedicated school building, Ms Powles must ensure that the children have a suitable adult educator who can work with them on their required schoolwork on each day of each school term.
25)Ms Powles, her servants and agents be restrained by injunction from –
a)causing or permitting the children, or any of them, to be involved in any activity in any licensed premises which would require the children, or any of them, to serve alcohol, to serve food to patrons of the licensed premises who are or have been drinking alcohol, or to otherwise interact with patrons of the licensed premises who are or have been drinking alcohol; and
b)causing or permitting the children, or any of them, to enter or remain upon any licensed premises after 4:30 PM (unless the children are in the presence of Ms Powles and have attended the licensed premises for the purpose of dining or attending a social occasion or activity to which children would ordinarily be invited).
26)Where the parties are unable to resolve a conflict relating to the children, or to these orders, by informal discussions among themselves, they must forthwith sign all such documents and do all such acts and things as shall be necessary to attend a Family Dispute Resolution Centre (or to participate in a family dispute resolution procedure) to try to resolve the dispute in the first instance, and before commencing any further proceedings in a court of competent jurisdiction.
I certify that the preceding [243] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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