YALE and TAVISH

[2017] FCWA 63

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: YALE and TAVISH [2017] FCWA 63

CORAM: O'BRIEN J

HEARD: 1-2 MARCH 2017

DELIVERED : 30 MAY 2017

FILE NO/S: PTW 1562 of 2014

BETWEEN: MS YALE

Applicant

AND

MR TAVISH
Respondent

Catchwords:

PARENTING - where presumption of equal shared parental responsibility does not apply as there are reasonable grounds to believe that the father has engaged in family violence - where an order for equal shared parental responsibility is not in the child's best interests - where the mother acknowledges the benefit to the child of a meaningful relationship with the father, but the father appears unable to refrain from inappropriate questioning of the child and from exposing her to his ongoing antipathy towards and jealousy of the mother - where the father's time with the child to date has been supervised - turns on own facts.

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant: Self-Represented Litigant

Respondent: Self-Represented Litigant

Solicitors:

Applicant: Self-Represented Litigant

Respondent: Self-Represented Litigant

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

Nil

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

1[Ms Yale] (“the mother”) and [Mr Tavish] (“the father”) have been unable to agree parenting arrangements for their daughter [the Child] born [in] 2007.

2Proceedings in this Court were commenced by the mother on 29 July 2015. The delay in the matter proceeding to trial arose not only because of issues relating to the resourcing of the court, but also as a result of the failure at times by both parties to comply with procedural orders, and a number of failures on the part of the father to attend court events and to comply with orders for the filing of documents.

Brief background

3The father is a 49 year old [hospitality worker] who was born in [Country A]. The mother is a 39 year old [Government] worker who was born in Australia. They met [overseas] in [City A] in September 1997 and commenced a relationship.

4The parties were married in City A in April 2005. In July 2007, the father was granted a permanent resident visa for Australia; on the mother’s case, the parties initially had mutual plans to move to Australia in December of that year after the birth of their daughter, but later agreed to defer the move by 12 months. On the father’s case, they planned to return to Australia only briefly, because of the serious illness of the maternal grandmother, and then would continue working in [Country B] for a further year or so before moving to Australia. Nothing turns on that disagreement.

5After the Child’s birth the parties travelled to Australia in October 2007 as the maternal grandmother was dying. After her death, the father returned to City A to work; the mother and the Child followed a couple of months later.

6In late 2008, the mother wanted to move back to Australia as previously planned. The father did not. The mother and the Child left Country B in November 2008 and the father joined them in Australia in June 2009.

7Difficulties in the relationship continued. The father left Australia for Country A in October 2009 and on the mother’s case she reached a firm decision that the marriage was over on 5 November 2009.

8In June 2010, the mother began a new relationship. When she told the father of that fact, he indicated that he would return to Perth urgently. He returned to Perth in early July 2010.

9Further difficulties arose as a result of what the father described under cross-examination as his “sexual jealousy” at the mother commencing a new relationship. On the mother’s case, the father was verbally abusive towards her in front of the Child.

10Following an incident on 18 August 2010, the father was detained by the Police overnight.

11The Police report of the incident recorded that the mother had arrived at an address in [Suburb A] to collect the Child after she had spent time with the father. The father was allegedly abusive towards the mother and is then reported by the mother as having said in [a foreign language], “I’m going to kill [the Child] and kill myself and you can go to Police and tell them what’s happened.”

12The father was arrested. The Police records indicate that he made partial admissions on a video recording of the interview. He was charged with unlawful trespass and granted a spent conviction [in] January 2011.

13The mother applied for and was granted a Violence Restraining Order (“VRO”) to protect both her and the Child.

14After the mother ended her new relationship in December 2010, she perceived that the father had addressed his anger issues to a sufficient extent that she requested the cancellation of the VRO. The Child had her first overnight stay with the father shortly thereafter.

15The improvement in the relationship between the parties was short lived. Further difficulties arose and on the mother’s case the father became verbally abusive towards her. Having previously helped the father, through family and friends, to obtain accommodation, the mother became concerned when he moved into shared accommodation at which, at some points at least, other members of the household were engaged in illicit drug use and acts of violence including an assault on the father.

16After the father left that shared accommodation, matters improved somewhat. The parties travelled together to Country A in November 2012 for the Child to meet the paternal family.

17Further issues arose in 2013. On the mother’s case, the Child began demonstrating disturbing behaviour. She sought counselling assistance for the Child, who on her case became firm in her wish not to visit the father and said at one point that she wanted to kill him.

18The father continued to be verbally aggressive towards the mother and towards male friends with whom he suspected her of entering into a relationship. He reacted badly when the mother commenced her present relationship with [Mr M].

19In June 2015 the mother obtained a further VRO against the father.

20Still further difficulties arose and the father was charged and convicted of six separate breaches of the VRO over the period from 9 June 2015 to 29 June 2015.

21In September 2015, after commencing these proceedings, the mother sought to initiate mediation through Anglicare. The father declined to participate.

22The mother arranged counselling for the Child through Anglicare in late September 2015 and early February 2016.

23On 18 December 2015, interim orders were made for the father to spend time with the Child each Monday and Tuesday from the conclusion of school or 3.00 pm until 7.00 pm, with that time to be supervised by a person proposed by the mother. Initially, the father’s time with the Child was facilitated by the supervision of the mother’s friend [Ms E], who assisted on a voluntary basis.

24On 20 August 2016 there was an incident between the father and Ms E at a visit to celebrate the Child’s birthday. As a result, Ms E was reluctant to continue the voluntary provision of supervision and in any event, the father was unwilling to accept her as a supervisor.

25The father subsequently began spending supervised time with the Child at Anglicare. At the time of trial he had spent time with the Child under those arrangements on a number of occasions.

The proposals of the parties

26The mother sought orders in the terms of a minute filed by her on 16 February 2017. The main elements of her proposals may be summarised as follows:

1.That she have sole parental responsibility for the Child and that the Child live with her;

2.That the father have regular supervised time with the Child every Monday for two hours and telephone communication with her on three occasions per week;

3.That supervision continue for a period of six months, and that unsupervised time not occur until the father can demonstrate over a sustained period of that duration that the Child would not be harmed in his care by exposure to conversations of an adult nature, denigration of the mother or other relevant parties, or in any other way; and

4.That the Child not spend time at or stay overnight at the father’s home until he can demonstrate that he has his own accommodation with a separate bed and bedroom for the Child, and in safe circumstances.

27The mother also sought various other orders in relation to the provision of information, handover, non-denigration and the like.

28The minute filed by the mother did not contain any proposals as to the form which she would say any unsupervised time should take if and when there is no longer a need for supervision. I raised that issue with her during the hearing and she proposed during her closing submissions a progression in the Child’s time with the father which is set out in more detail later in these reasons.

29The father sought orders in the terms of a minute handed up by him in court at the commencement of the trial. The main elements of his proposals may be summarised as follows:

1.That the Child spend unsupervised time with him each week from Sunday afternoon until Tuesday morning before school;

2.That he have telephone communication with the Child three nights per week without that conversation being supervised by the mother;

3.That the Child stay overnight with him on father’s day and her birthday; and

4.That he be able to take her for holidays including two weeks during the summer holidays each year.

30The father’s minute did not address the issue of parental responsibility, nor did it contain details of his proposals as to school holidays. I raised those issues with him during the hearing. In closing, the father said that he sought to have equal shared parental responsibility for the Child, while proposing that any consultation between the parties should only be in writing. He sought to spend half the school holidays with the Child, to spend time with her on her birthday and on other special occasions and to have the opportunity to participate in events relating to her schooling.

31By the conclusion of the trial both parties agreed that mutual non-denigration orders were appropriate.

The law

32In deciding whether to make a particular parenting order, I am required to regard the best interests of the child as the paramount consideration. I must be guided by the objects of the Act and the principles underlying them.

33Section 61DA of the Family Law Act 1975 (Cth) (“the Act”) provides as follows:

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

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

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

(b)family violence.

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

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

34If an order for equal shared parental responsibility is to be made, I am required to consider whether the Child spending equal time with each of her parents would be in her best interests and whether such an arrangement would be reasonably practicable. If so, I am then required to consider making such an order.

35Again against the background of an order for equal shared parental responsibility being made, if I do not make an order for the Child to spend equal time with each parent, I am required to consider whether spending substantial and significant time (as that term is defined in the Act) with each parent would be in her best interests and reasonably practicable. If so, I am required to consider making such an order.

36While neither party sought orders that the Child live equally with both parents, if an order for equal shared parental responsibility is to be made I must nevertheless undertake the decision-making process in the manner required by the legislation.

37In determining what is in the Child’s best interests, I am required to consider the matters set out in s 60CC of the Act. While those matters are divided in the legislation into “primary” and “additional” considerations, the primary considerations do not necessarily outweigh any combination of the additional considerations.

38Section 60CC provides as follows:

Determining child’s best interests

(1)Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).

Primary considerations

(2)The primary considerations are:

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

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

(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2) (b).

Additional considerations

(3)Additional considerations are:

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

(b)the nature of the relationship of the child with:

(i)each of the child’s parents; and

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

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

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

(ii)to spend time with the child; and

(iii)to communicate with the child;

(ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;

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

(i)either of his or her parents; or

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

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

(f)the capacity of:

(i)each of the child’s parents; and

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

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

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

(h)if the child is an Aboriginal child or a Torres Strait Islander child:

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

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

(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

(j)any family violence involving the child or a member of the child’s family;

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

(i) the nature of the order;

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

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

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

(v) any other relevant matter;

(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;

(m)any other fact or circumstance that the court thinks is relevant.

…

The parties as self-represented litigants

39Both parties were self-represented at trial.

40At the commencement of the trial I explained to them various matters so as to ensure that they properly understood the process.

41I explained the steps that I was required to take to ensure procedural fairness. I informed the parties of the manner in which the trial was to proceed, the order in which they would give their evidence and make submissions and their right to cross-examine.

42At the status hearing listed of the court’s own motion on 16 February 2017 I had explained to the parties the importance of cross-examination and the likelihood that evidence that was not challenged in cross-examination would be accepted. Having received that explanation, the father told me that he did not require any of the mother’s various witnesses other than her partner Mr M to attend for cross-examination. When I questioned his decision in that regard, he confirmed it.

43On the morning of trial, on reflection, the father said that he would require the mother’s witness Ms E to attend for cross-examination. Ms E was present at court and accordingly available.

44I explained to the parties that they would be permitted to give updating evidence-in-chief as to facts arising after the date on which the trial affidavits were sworn, and I explained the nature and purpose of re-examination.

45I set out the principles to which the court is required to give effect in conducting child-related proceedings. In particular, I explained the principle requiring me to actively direct, control and manage the conduct of the trial. I had previously advised the parties at the status hearing that the trial would be run in a manner that would ensure that they had all the time properly needed to explore matters genuinely in issue and, as far as possible, that the best information was before the court to allow me to make parenting orders in the Child’s best interests. I made it clear to both parties that they would not be permitted to spend time on matters that were irrelevant to the issues.

46I explained that in relation to parenting proceedings, the formal rules of evidence did not apply other than in certain limited circumstances.

47Both parties had received at the conciliation conference on 30 August 2016 copies of the handbook for self-represented litigants produced by the court and had, by that process, had the relevant law drawn to their attention.

48I explained to the parties my obligation to attempt to clarify the substance of their submissions so as to ensure that I properly understood their cases as they wished them to be put. I emphasised the need to focus both in evidence and in submissions on the Child’s best interests as the paramount consideration. I explained that an exploration of past events would only be useful to the extent that it might inform decision-making for the future, but that the parties should not hesitate to explore past events if they considered them to be relevant to the decisions to be made.

49In his affidavit material, the father had referred to English being his third language and made various assertions about the mother’s level of education compared to his own. Accordingly, at the status hearing I raised with him directly the question of whether he required an interpreter for the purposes of trial. He declined that offer, expressing confidence in his ability to conduct the proceedings. He confirmed in his sworn evidence at trial that he did not require the assistance of an interpreter. I record my observation at trial that the father’s English was entirely adequate and that he appeared to readily understand all questions and submissions. He had no difficulty in expressing himself, tripping up only occasionally in relation to legal terminology, which of course was entirely understandable.

50The mother was very prepared and meticulous as reflected both in her documents and in the structure of her submissions and cross-examination. The father, as already noted, had not complied with various procedural orders and accordingly filed affidavits very much at the “last-minute”. While his level of preparation for the hearing was much less than that of the mother, he was given every opportunity to prepare and was provided with materials to assist him.

51I am satisfied that the trial proceeded in a manner which afforded procedural fairness to both parties.

The evidence at trial

52The mother relied on the following affidavits:

1.Her trial affidavit filed on 4 October 2016;

2.Affidavit of her partner Mr M filed 5 October 2016;

3.Affidavit of [Ms Y] filed 5 October 2016;

4.Affidavit of [Mr S] filed 5 October 2016;

5.Affidavit of [Ms S] filed 5 October 2016;

6.Affidavit of [Ms C] filed 5 October 2016;

7.Affidavit of [Ms D] filed 5 October 2016;

8.Affidavit of [Mr Y] filed 5 October 2016;

9.Affidavit of Ms E filed 5 October 2016;

10.Affidavit of [Ms I] filed 5 October 2016;

11.Affidavit of [Ms SC] filed 5 October 2016; and

12.Affidavit of [Ms O] filed 5 October 2016.

53Only the mother, Mr M and Ms E were required by the father to present for cross-examination.

54The father had filed on 14 February 2017 an affidavit for the purposes of trial. He had not filed any witness affidavits.

55On the morning of trial, he sought to hand up a further affidavit sworn by him on 28 February 2017 and an affidavit sworn by [Ms M].

56The matter was stood down to give the mother the opportunity to read those affidavits and consider her position as to whether they should be admitted into evidence. Having had that opportunity, she consented to the admission into evidence of the further affidavit of the father. She opposed the admission into evidence of the affidavit of Ms M, saying that the factual content of that affidavit was contentious and she would require considerable time to prepare for cross-examination even if Ms M was made available.

57Given the limited probative value of the affidavit of Ms M, the circumstances in which it was tendered and weighing the relative prejudice to either party of its admission or non-admission, I declined to admit the affidavit into evidence.

58The father’s evidence at trial, therefore, was limited to his two affidavits of evidence-in-chief.

59Conference memoranda prepared by Family Consultant Dungy during the course of the proceedings and dated 15 September 2015 were received in evidence. Neither party sought that the Family Consultant present for cross-examination.

Observations as to the evidence given at trial

60The mother presented, as the father had predicted, as intelligent and articulate. She had clearly prepared carefully for the trial. Her affidavit evidence was very detailed.

61Under cross-examination, and in her submissions, the mother endeavoured to be measured and appropriate. While on occasions her answers appeared to be given with an eye to her overall strategy and desired outcome, in general she gave evidence in a straightforward manner.

62The mother’s witnesses, however, were less impressive.

63The mother’s new partner Mr M quite pointedly “stared down” the father on entering the witness box and while being sworn. Quite what he thought was the point of that display was not clear. That said, he was cross-examined only briefly and gave his answers in a direct, albeit blunt, manner.

64The mother’s friend Ms E was also required for cross-examination. She too struggled to contain her antipathy towards the father, engaging in and occasionally initiating arguments with him, rather than constraining herself to her role as a witness, notwithstanding reminders from me. At one point during her evidence I felt it necessary to remind both her and the father that they were in a court and should behave accordingly.

65That said, I acknowledge that while not without fault herself, Ms E has cause to feel somewhat aggrieved towards the father. For a significant period she facilitated his time with the Child by voluntarily supervising that time. Notwithstanding the complaints the father would make about the interventionist nature of her supervision at times, her willingness to act as supervisor was of considerable benefit to him and to the Child. It is understandable that she would be aggrieved by some of his behaviour towards her; nevertheless, the intensity of her reactions to him undermined the utility of her evidence.

66The father was a poor witness. Despite frequent reminders from me, for most of the trial he was unable either in his own evidence or in his cross-examination of the mother and her witnesses to restrain himself from arguing his case, engaging in direct arguments with the mother or the relevant witness or from making statements irrelevant to the question actually asked. In the course of his cross-examination on the first day of trial in particular, he struggled to directly answer questions put to him. He did better in that regard on the second day of trial.

67The father made various admissions and concessions during the course of his evidence. By way of example, he admitted sending the Child a text message saying that he missed her and hoped that he would one day have a “normal life like other dads”, without supervision, and be “far from Mummy’s friends”.

68 While the father made various admissions, he generally caveated those by seeking to at least partially blame the mother for his behaviour. When he admitted that he had spoken assertively to men with whom the mother interacted and that he had attended uninvited at her home, he attributed that to “sexual jealousy” which he clearly regarded as making his behaviour understandable, if not justified. When he admitted denigrating the mother to the Child, he said that he had only done so because he was upset that the mother was keeping his daughter away from him. He had considerable difficulty in accepting exclusive responsibility for his own actions.

69That said, for the most part I regarded the failings in the father’s evidence as arising primarily from a significant lack of insight on his part rather than intentional dishonesty.

70While the mother’s evidence was not entirely satisfactory, where the evidence of the parties conflicted I regarded her as a more accurate historian. I find that her version of the various disputed events was accurate.

The presumption of equal shared parental responsibility

71The presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child who was at the relevant time a member of the family, or has engaged in family violence.

72It is important to bear in mind that family violence does not have to be proven in order for the presumption not to apply; it is sufficient that there are reasonable grounds to believe that family violence has occurred.

73Family violence, and exposure to family violence, are defined in s 4AB of the Act in the following terms:

Definition of family violence etc.

(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.

(2)Examples of behaviour that may constitute family violence include (but are not limited to):

(a)an assault; or

(b)a sexual assault or other sexually abusive behaviour; or

(c)stalking; or

(d)repeated derogatory taunts; or

(e)intentionally damaging or destroying property; or

(f)intentionally causing death or injury to an animal; or

(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or

(j)unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.

(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.

(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:

(a)overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or

(b)seeing or hearing an assault of a member of the child's family by another member of the child's family; or

(c)comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or

(d)cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or

(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.

74The father has admitted slapping the mother and that his actions constituted family violence. He has admitted attending uninvited at her premises and looking in through the windows. He further admitted having climbed onto a balcony at her premises in further efforts to find out what she was doing, in the context of his self-described “sexual jealousy” arising from her new relationship.

75The Police were involved as a result of a number of incidents between the parties. The father was convicted in August 2010 of trespassing without lawful excuse on the premises occupied by the mother. He was convicted in June 2015 of six separate counts of breaching the VRO.

76It is clear that there are reasonable grounds to believe that the father has engaged in family violence as that term is defined in the Act.

77Accordingly, the statutory presumption of equal shared parental responsibility does not apply.

78The question of parental responsibility remains to be determined by an analysis of the matters required to be considered in determining what parenting orders are in the Child’s best interests.

The primary considerations

79It is common ground that the Child has a meaningful relationship with each of her parents and that those relationships are to her benefit. In her opening submissions, the mother described the Child as a child who was a mix of the good qualities of each of her parents. She described the Child as being a gifted reader, a hard worker and a very organised, neat and polite child who sets high standards for herself. She recognised a number of the father’s qualities in the Child, attributing to him her flair for the artistic, her musical talent and her ability to make friends easily by virtue of her outgoing and friendly personality.

80The more difficult issue in terms of the primary considerations set out in the legislation is the need to protect the Child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

81There is no suggestion that the Child will be so exposed in the care of the mother.

82The father denies ever making any threat to physically harm the Child. While the mother has in the past held concerns for the Child’s physical safety in the care of the father, she no longer holds those concerns. She maintains, however, her concern that the Child will be exposed to the risk of psychological harm by exposure to the father’s behaviour, his resentment at the end of the relationship and his anger towards the mother.

83The history of the interactions between the parties, and the father’s own presentation in court, give credence to the mother’s concerns. While I accept unreservedly that the father loves the Child and would wish her no harm, I can have no confidence in his present ability to moderate his behaviour and statements in her presence. There remains a risk that he will expose the Child to his anger and resentment towards the mother, to inappropriate adult concepts and to his views that he has been treated unfairly.

84Given the child’s age and her relationship with the mother, exposure to those forms of behaviour raises a risk of psychological harm to the Child.

85I conclude, therefore, that the parenting orders to be made should be crafted with an eye to protecting the Child from that risk.

The additional considerations

86The Child is mature and intelligent for her age, but she is not yet 10 years old. It is common ground that she loves her father and wants to spend time with him. That said, it is clear that the father has at times had difficulty in shielding the Child from his sadness regarding the separation and his inability to spend more time with her. To the extent the Child’s views have been expressed, they must be considered against that background.

87The Child clearly has a close and loving relationship with the mother, who has been her primary caregiver since birth. Her relationship with the father has not developed to the same extent, but is nevertheless important to her. She has appropriate relationships within the maternal extended family and circle of friends. She has met her paternal extended family when she travelled to Country A in 2012 and the mother acknowledges that she has fond memories of them.

88It is not in dispute that the mother has always fully participated in decision-making for the Child and has taken every opportunity to spend time with her. The father’s involvement since separation has been more sporadic; while to a certain degree he would blame the mother for that, the limited nature of his involvement has largely been as a result of his own actions. Nevertheless, I accept that he is genuine in his expressed desire to participate in decision-making about the Child, spend time with her and communicate with her regularly.

89The mother has fulfilled her obligations to maintain the Child. There have been issues at times in relation to the father failing to meet child support obligations, but he has also met other expenses on her behalf without being compelled to do so. Given the matters in issue in the proceedings, nothing turns on that consideration.

90I am required to consider the likely effect on the Child of any changes in her present circumstances. In that regard, the father’s proposals are in my view a progression which is “too much, too soon”. The Child’s time with her father has been limited and supervised to date; a direct progression to the arrangements proposed by him would represent a very dramatic change in her circumstances, which would be likely to cause her confusion and distress.

91Having made that observation, I observe further that the mother’s proposals in relation to holidays in particular seem to me to be unduly restrictive, particularly against the background of her concession that she would be prepared for the Child to travel with the father to Country A for a period of up to two weeks.

92In my view appropriately, the mother conceded in closing submissions that the Child spending more time with the father, and on an unsupervised basis, would be in her best interests provided the father can demonstrate a capacity both to have suitable accommodation for her and to avoid exposing her to adult concepts, denigration of the mother or her new partner, or his own feelings about the breakdown of the relationship between the parties.

93Those concessions appropriately inform a consideration both of the effect on the Child of any change in circumstances and the approach to be taken towards any progression in her time with the father.

94There are no relevant practical difficulties or expenses associated with the Child spending time with the father, other than the cost involved in such supervision as may be needed. While Anglicare is limited in the services it can provide, private supervision services are more flexible but at greater cost.

95There is no dispute about the capacity of the mother to provide for the Child’s needs, including her emotional and intellectual needs. Similarly, there is no dispute as to the appropriateness of her attitude to the responsibilities of parenthood.

96The father has, at times, had difficulty in providing appropriately for the Child’s physical needs in terms of the provision of suitable accommodation. It appears that he has now addressed that issue. As noted above, concerns remain as to his ability to provide for the Child’s emotional needs in the sense of shielding her from his own issues. The development of his attitude to the responsibilities of parenthood will to a significant degree turn on his willingness and capacity to make improvements in that regard.

97The Child is, on her mother’s evidence, a mature and intelligent child. To their credit, the parties agree that she will benefit from ongoing exposure to their respective cultures.

98I have referred earlier in these reasons to the issue of family violence. There is a VRO currently in place.

99I have also considered whether it would be preferable to make the order that would be less likely to lead to the institution of further proceedings in relation to the Child. To the extent possible, avoidance of further court proceedings is clearly in the Child’s best interests. During the course of the trial I raised with the mother my concerns in that regard, pointing out that her proposals as to any progression of the Child’s time with her father once supervision is no longer required lacked any form of specificity, and would (as acknowledged in her Papers for the Judge) likely require further proceedings.

100The mother addressed that issue in her closing submissions.

101She proposed that orders be made in the terms of her minute. If, however, I determined that supervision was not required she would propose that initially the Child spend time with the father each Monday from after school to 7.00 pm.

102She proposed that, subject to that time progressing well, it increase after three months to each alternate weekend from 3.00 pm on the Sunday until 7.00 pm on the Monday, with that arrangement continuing during school holidays.

103She proposed that arrangement continue for a further six months, and that provided it progressed well it thereafter increase to each weekend from 3.00 pm on Sunday to 7.00 pm on Monday, and each week during school holidays from 3.00 pm on the Sunday to 7.00 pm on the Tuesday.

104She proposed that the Child spend Father’s Day with the father and that she spend time with each parent on her birthday and on Christmas day. She proposed that once unsupervised time commenced, the services of Anglicare be used to facilitate any handover that did not take place at school or that handovers take place at a mutually agreed public location.

105The mother then volunteered that she would agree to the Child being able to travel to Country A with her father for a period of two weeks during summer school holidays if the court was satisfied that her regular time with the father was going well. I pointed out to her the inconsistency of that proposal with her broader proposal that the Child spend much less time with the father during school holidays and only short periods of time with him during school term.

106To her credit, the mother acknowledged that inconsistency and indicated a willingness to consider the Child’s time with the father more generally increasing to half the school holidays, regardless of any plans to travel. Her willingness to consider travel reflected her acknowledgement of the benefit to the Child of knowing her paternal extended family, and the practicalities of overseas travel. Both concessions were expressed as being subject to her being satisfied that the Child’s weekly time with the father was “going well” by which she meant not only that the child was enjoying her time, but that her concerns as to the father’s behaviour would have been addressed such that supervision of his time with the Child was no longer required.

107During closing submissions I raised with both parties the desirability of them participating in the “Mums and Dads Forever” program offered by Anglicare. Neither party had participated in that program by the time of trial. Both indicated their willingness to do so. That program is designed to assist separated parents to acquire the necessary skills to deal with each other in a constructive and child focused manner, putting aside past personal differences, and to develop an ongoing working relationship to the benefit of their child.

108In my view, the father in particular is likely to benefit from that program. The central issue which causes concern about his time with the Child is his inability to control and moderate his feelings towards the mother and his unwillingness or inability to shield the Child from those feelings.

109For reasons which follow, I consider it appropriate to make orders which will facilitate a structured progression in the Child’s time with her father, but with safeguards in place to ensure that he addresses his issues before that progression moves to unsupervised time.

Parental responsibility

110While the statutory presumption does not apply for the reasons outlined above, the father seeks an order for equal shared parental responsibility. The mother seeks an order for sole parental responsibility.

111The effect of an order for equal shared parental responsibility is to require any decision about a major long-term issue in relation to the child to be made jointly by the parents. That in turn requires each parent to consult the other in relation to the decision to be made, and to make a genuine effort to come to a joint decision.

112An order for equal shared parental responsibility is, self-evidently, a parenting order. In deciding whether to make a particular parenting order, I must regard the best interests of the child as the paramount consideration.

113The mother is, and on either party’s case will remain, the parent primarily responsible for the Child’s care. Other than in relation to the dispute regarding the Child’s time with the father, no criticism was raised of decisions the mother has made in the exercise of parental responsibility.

114It is clear from the evidence that the parties are unlikely to be able to communicate in a cooperative fashion about joint decision-making for the Child. There is no present prospect of them effectively exercising equal shared parental responsibility. It is to be hoped that that position might change over time if the father can adequately address his ongoing resentment towards, and jealousy of, the mother. Nevertheless, it is the present position which I must address. It is in my view not insignificant that the father himself proposes that any communication between the parties only be in writing.

115In short, I do not consider an order for equal shared parental responsibility to be in the Child’s best interests.

116That said, I propose to make orders which will ensure that the father is appropriately informed of all significant decisions made by the mother in the exercise of parental responsibility.

117As no order for equal shared parental responsibility is to be made, the consideration of equal time or substantial and significant time is not mandated by s 65 DAA.

118It being accepted by the father that an order should be made for the Child to live with the mother, it remains to consider what orders should be made for the Child to spend time with the father.

119As already noted, the mother agreed that, provided the father could address his various issues and could be relied upon not to expose the Child to adult concepts or his resentment and jealousy in relation to the mother, it would be in the Child’s best interests to spend unsupervised time with him. Given the history of the matter, and the father’s presentation at trial, it was understandable that she expressed no more than cautious optimism that such a progression might be possible.

120In my view, it is not in the Child’s best interests to spend unsupervised time with the father unless and until he can address his ongoing issues. While there is no doubt that he loves the Child and that she loves him, the benefits to the Child of unsupervised time with him risk being outweighed by the detriment she would suffer from exposure to the behaviours already referred to in these reasons.

121Accordingly, I propose to make orders which will in the short term at least maintain the requirement for supervision of the father’s time with the Child. If and when the father completes the Mums and Dads Forever program, and assuming compliance by him with the orders which I propose, a gradual progression of unsupervised time would then be appropriate.

122I have considered whether it would be appropriate to make interim rather than final orders. Neither party sought that I do so. Both sought a conclusion to the court proceedings. While the mother initially sought orders framed in a manner which would require some monitoring by the court of the father’s progress before any progression in his time with the Child, in closing she accepted the proposition that such orders were impracticable.

123In my view, the Child’s best interests are served by the making of orders which afford the father the opportunity to continue in a supervised context the progress he has recently made, to have the benefit of the Mums and Dads Forever program, and to then progress in a structured way to an arrangement whereby he will spend regular unsupervised time with the Child, including overnight and holiday time.

124For the reasons already set out, that progression will be subject to the father’s compliance with orders restraining him from exposing the Child to the types of behaviour which have been problematic in the past. If, for example, the father was to contravene the orders I propose to make in that regard he should anticipate that the mother might, in the context of an application to deal with that contravention, submit to the court that the orders I propose to make should be varied such as to alter or remove the proposed progression to unsupervised time. Both parties should be aware that in the context of such an application the court has the power to vary existing orders, whether or not the alleged contravention is proved.

125It is to be hoped for the sake of both parties, and most importantly the Child, that such steps will not become necessary and that the parties will have no need to bring further proceedings of any nature. Whether that hope is met will depend largely on the father.

Proposed orders

126Subject to any submissions as to form, I propose to make the following orders:

1.All existing parenting orders be and are hereby discharged.

2.The Applicant, [Ms Yale], have sole parental responsibility for [the Child], born [in] 2007.

3.[The Child] live with the Applicant.

4.The Applicant and the Respondent, [Mr Tavish], both enrol in and complete the Mums and Dads Forever course offered by Anglicare, and provide to the other party written confirmation from Anglicare of that enrolment and completion.

5.Until compliance by the Respondent with paragraph 4 of these Orders, [the Child] spend time with the Respondent on two occasions each week from the conclusion of school or 3.00 pm until 7.00 pm, with such time to be supervised by Anglicare, Relationships Australia, or such other professional supervisory service as the parties might agree in writing, with the Respondent to meet the costs of supervision.

6.For a period of three (3) months following compliance by the Respondent with paragraph 4 of these Orders, [the Child] spend time with the Respondent on two occasions each week from the conclusion of school or 3.00 pm until 7.00 pm without the requirement for such time to be supervised.

7.Thereafter, [the Child] spend time with the Respondent as follows:

(a)during school term, each weekend from 3.00 pm on the Sunday until 7.00 pm on the Monday; and

(b)during school holidays, for two consecutive nights each week for the first three such school holiday periods, and thereafter for half of each school holiday period.

8.For the purposes of [the Child’s] time with the Respondent pursuant to paragraphs 6 and 7 of these Orders, handover take place:

(a)on a school day, at [the Child’s] school; and

(b)on any day which is not a school day, at a public location not more than 15 kilometres from [the Child’s] home address and nominated in writing, by email or text message by the applicant.

9.Once [the Child] has commenced spending time with the Respondent as contemplated in paragraph 7(a) of these Orders, the parties do all things necessary to ensure that [the Child] spends time:

(a)with the Respondent on each Father’s Day;

(b)with the Applicant on each Mother’s Day; and

(c)with each parent on [the Child’s] birthday and on Christmas Day.

10.Once [the Child] has commenced spending time with the Respondent for one half of each school holiday period as contemplated in paragraph 7(b) of these Orders, the Respondent be at liberty to request the Applicant’s consent to enable him to take [the Child] to [Country B] no more than once per annum for a holiday of no longer than two weeks duration, and the mother not unreasonably withhold her consent.

11.The parties be restrained and an injunction is hereby granted restraining them from denigrating the other party to or in the presence or hearing of the child.

12.The Applicant give to any school attended by [the Child] from time to time all necessary authorities and directions to ensure that the school provides directly to the Respondent copies of [the Child’s] school reports and other information ordinarily provided to parents.

13.The Respondent have liberty to apply to the Honourable Justice O’Brien for an order varying these Orders in the event that he is deemed by the service provider to be unsuitable for participation in the Mums and Dads Forever Program and is refused entry to the program.

14.This is an order to which section 68Q of the Family Law Act 1975 (Cth) applies and to the extent that this order is inconsistent with the Family Violence Order made in the case between the parties on 5 June 2015 in the Magistrates Court at [Suburb B] being Complaint number [XX/XXX/XXX/XX/XXX/XXXX], the aforesaid parenting order shall prevail and the Family Violence Order is invalid to the extent of the inconsistency.

15.The Deputy Registrar, Magistrates Court, 150 Terrace Road Perth cause a sealed copy of this order to be forwarded to the Commissioner of Police, the Deputy Registrar, Magistrates Court at [Suburb B] and the Chief Executive Officer of the Department for Child Protection and Family Support.

16.All outstanding applications and responses otherwise be and are hereby dismissed.

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

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

(a)all parties must collect the exhibits tendered by them (“their exhibits”), from the Chambers of Justice O’Brien at least 28 days, and no later than 42 days, from today’s date;

(b)all parties must contact the Chambers of Justice O’Brien to arrange the collection of their exhibits; and

(c)in default of compliance with subparagraph (a), all material tendered as an exhibit, save and except for material produced pursuant to subpoena, will be destroyed by the court without notice to the parties.

I certify that the preceding [126] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate
30/05/2017