Western Australia

Family Court

  • Arthur and Joyner [2015] FCWAM 197 (4 September 2015) – Family Court of Western Australia (Magistrates Decisions)
    Interim parenting orders’ – ‘Parenting orders and impact on children’ – ‘Physical violence and harm

    Proceedings: Interim parenting orders.

    Facts: The mother and father had two children. Both parties had criminal histories, mental health issues and problems with drugs and alcohol. The mother previously obtained an interim violence restraining order and a family violence offence had been reported to the police against the father but both matters were dropped. Before the hearing, the parenting arrangements were that the children live with the mother and spend supervised time with the father once a week. The father sought orders for unsupervised time with the children. At the end of the hearing, the Court made immediate orders for unsupervised time between the father and the children.

    Issue/s: What ought to be the extent of ongoing time between the children and the father?

    Reasoning/Decision: The strict and comprehensive guidelines for determining an interim parenting application were set out in Goode & Goode (2006) FLC 93-286 (see [27]). Magistrate Kaeser cited the Full Court of the Family Court’s decision in Banks & Banks [2015] FamCAFC 36, which provided guidance on the application of these principles. The Court in Banks stated at [48]-[50]:

    ‘It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial [emphasis in original]. The fact such disputes are commonly dealt with in overcrowded Court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.

    […]

    When it is obvious that the findings made as to some of the s60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it would be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the nondeterminative s60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors’.

    Magistrate Kaeser affirmed the orders that the father ought to have unsupervised contact with the children. The presumption of equal shared parental responsibility did not apply given that there was reasonable grounds to believe there had been family violence in the relationship. In these circumstances, the issue of equal time or substantial and significant time did not need to be determined. It was reasonable for the children to spend one overnight occasion with their father every fortnight (see [33]-[44]).

  • Sampson and North [2014] FCWA 75 (25 November 2014) – Family Court of Western Australia
    Court management’ – ‘Emotional and psychological abuse’ – ‘Exposing children’ – ‘Fair hearing and safety’ – ‘No contact orders’ – ‘Parenting orders’ – ‘Physical violence and harm’ – ‘Questioning witnesses’ – ‘Self-represented litigants’ – ‘Sexual and reproductive abuse’ – ‘Unacceptable risk

    Proceedings: Parenting orders.

    Facts: The father was verbally, physically and emotionally abusive towards the mother throughout their relationship. He assaulted her, forced her to have sex against her will, posted comments on Facebook referring to kill her and threatened to kill her. After their first child was born, a safety plan was put in place by the Department of Child Protection (DCP) specifying that the father have no unsupervised contact with the child. Their second child was born. The mother left the home with the children. She obtained a violence restraining order and a filed a Notice of Abuse with the DCP.

    Issue/s: What parenting orders were appropriate in the circumstances?

    Reasoning/Decision: This case raised significant issues relating to case management in circumstances where the father was a self-represented litigant. The father’s behaviour at trial soon was unmanageable, despite several requests from the court that he refrain from using foul language and despite warnings regarding his conduct. The mother was cross-examined by the father and kept her composure in extremely difficult circumstances (see [43]-[44]). Likewise, counsel for the mother questioned the father in a calm and measured way, despite his behaviour.

    Following threats made in the courtroom by the father, the Court took the unusual step of asking counsel for the mother and the Independent Children’s Lawyer to his chambers. He informed them that the trial could not safely proceed with the father present in court. Upon the resumption of the trial the Court made an order that the father attend trial from an alternative venue by way of video link (see [47]-[48]). The father’s behaviour did not improve throughout the rest of the hearing. The Court warned the father on several occasions that if he continued to use foul language the Court would switch on the mute button. After several disruptions, the Court activated the mute button (see [51]-[67]).

    Duncanson J stated here at [68] that: ‘The trial was conducted in the most difficult circumstances by reason of the father’s conduct, threats and appalling language. Both the ICL and counsel for the mother conducted themselves properly throughout and are to be commended for their perseverance and tolerance. An order sought by the mother was that the children spend no time with the father. In these circumstances it was important that the relevant evidence be provided to the court and properly tested by cross-examination to ensure that the Court is able to determine all issues and make orders which are in the best interests of the children. It was also important that the Court not allow the father to distract it from those issues’.

    In making parenting orders, Duncanson J held that the presumption of shared equal parental responsibility did not apply here because of family violence committed by the father. The mother was given sole parental responsibility for the children. It was also in the best interests of the children that they live solely in the care of their mother as the children would be placed at an unacceptable risk of harm in the care of their father.

    Finally, the Court held that the father have no contact with the children. This was appropriate in circumstances where ‘the children’s relationship with the father is not a meaningful one and as such will not be of benefit to them in the future. The children are at risk of both physical and psychological harm in the care of the father. His unrelenting denigration, criticism and vitriol towards the mother could undermine the children’s relationship with her and impact upon her parenting of the children in the future’ (see [184]-[197]).

  • Eddon and Eddon [2012] FCWA 104 (6 November 2012) – Family Court of Western Australia
    Emotional and psychological abuse’ – ‘Parenting orders and impact on children’ – ‘Relocation orders

    Proceedings: Relocation and parenting orders.

    Facts: The mother was born in England and the father was born in Australia. They had one child together. The mother sought orders to have sole parental responsibility for the child and permission to relocate the child to the UK. Her case revolved around the claim that the father’s sustained emotional abuse towards her transformed her from a strong, independent woman into a nervous wreck who needed the support of her family in the UK (see evidence [31]-[80]). The father sought equal shared parental responsibility and that the child live with the mother in Australia.

    Issue/s: What parenting and relocation orders were appropriate in the circumstances?

    Reasoning/Decision: First, in relation to the issue of allocating parental responsibility, Thackray CJ noted that the presumption in favour of shared parental responsibility did not apply because of the father’s violence. In the circumstances, it was appropriate for the mother to have sole parental responsibility for the child. His Honour was satisfied that the mother would seek to involve the father in any important decisions about the child and that she would make the right choices for the child (see [157]-[160]).

    Second, Thackray CJ turned to the issue of the planned relocation. His Honour noted that this case involved choosing the least bad alternative, as neither of the proposed outcomes was in any way satisfactory. If the mother relocated, the child would effectively be denied a meaningful relationship with his father, at least for some years until the father could afford to see him more regularly. If the mother was not permitted to relocate, there was a serious risk that she would fall into a state of depression, leading to the likelihood of a damaged attachment with her child. This would be extremely damaging to the child in the long term. In His Honour’s view, this factor was of far greater importance than the ‘significant, but not sever grief’, the child would face if not permitted to see his father regularly. The mother was therefore permitted to relocate to the UK to obtain support from her family to recover from the abuse she suffered.

    His Honour concluded at [166]-[167]:

    Although not a factor I need to take into account, there is potential for the outcome of cases such as the present to have a salutary impact on the behaviour of other parents. Unless the best interests of the child demand otherwise, it cannot reasonably be expected that one party to a relationship can behave in an abominable fashion, cause severe emotional harm to the other party, and then insist that they continue to live nearby so that they can continue to have a close relationship with their child. The strong emphasis given by our law to the importance of protection from violence would be undermined if any different message were conveyed.

    Notwithstanding his past conduct, it is impossible not to feel some sympathy for the father who I consider not only has gained some appreciation of the consequences of his behaviour, but wants to do the best he can for his son. His behaviour has been much improved, and he should be commended for that. But, unfortunately, as was put to him in cross-examination, it is a case of “too little, too late”. The damage has been done. All the father can do now, which I am satisfied he wants to do, is to make amends. It is not too late for him to be a good father, but he will have to achieve that by allowing the mother time to recover, which I am persuaded she can only do if she is permitted to go home’.

  • P and J [2010] FCWA 53 (9 March 2010) – Family Court of Western Australia
    Parenting orders’ – ‘Physical violence and harm’ – ‘Presumption of equal shared parental responsibility

    Proceedings: Parenting orders.

    Facts: The mother and the father had two children together, Jack and Helen. The father breached a violence restraining order on four occasions and had been convicted of assaulting the mother. The father sought orders for shared parental responsibility for major long term issues concerning the children. The mother proposed that she have sole parental responsibility for issues concerning the children’s health, education and Jack’s speech and language therapy requirements, but otherwise agreed that there ought to be shared parental responsibility.

    Issue/s: One of the issues was should the parties have equal shared parental responsibility for the children?

    Reasoning/Decision: In relation to the issue of shared parental responsibility, Thackray CJ was satisfied that the father had engaged in family violence and therefore the presumption of equal shared responsibility did not apply. His Honour noted that just because the presumption did not apply, did not mean that it could not be in the best interests of the children for the parents to have equal shared parental responsibility. However, in the circumstances, equal shared parental responsibility was not an option. The parents had shown no capacity to come to any agreements in relation to significant matters concerning the children and any order requiring them to consult would fail.

    His Honour concluded that the mother have sole parental responsibility for all major long term issues concerning the children. This was appropriate in circumstances where she was also to have primary care responsibility for the children and further, she was more in tune with the children’s needs and was better equipped than the father to make decisions for the children’s long term welfare (see [75]-[81]).

  • W and W [2006] FCWA 103 (6 October 2006) – Family Court of Western Australia
    Parenting orders’ – ‘Physical violence and harm’ – ‘Presumption of equal shared parental responsibility’ – ‘Rebutting the presumption

    Proceedings: Parenting proceedings.

    Facts: The mother and the father had two children together and sought parenting orders. The mother proposed that she be given sole responsibility for decisions concerning the children’s welfare while the father sought orders for shared parental responsibility.

    Issue/s: One of the issues was whether the parties should have equal shared parental responsibility for the children?

    Reasoning/Decision: The presumption of equal shared parental responsibility did not apply here because the father assaulted the mother. However, Thackray J went on to state at [23]-[24]:

    ‘The fact the presumption does not apply is by no means the end of the matter. Judges in this Court have long taken the view that it is generally appropriate for both parents to have an equal say in major decisions about their children. This is particularly true of cases where the parents have a shared-care arrangement. The fact there has been family violence is clearly an important factor in determining whether it is appropriate for the parents to share parental responsibility; however, the nature of the violence needs to be assessed to determine whether it should have any impact.

    It is my assessment that the nature of the violence here was not such, in itself, as to have any real impact on the allocation of parental responsibility. However, I consider there are other reasons why it would not be in the best interests of the children for their parents to be left with shared parental responsibility’.

    His Honour held that the mother ought to be given sole parental responsibility in circumstances where the parties had an extremely poor relationship, they did not communicate with each other than by email (which the father used to abuse, annoy and denigrate the wife) and the father was extremely controlling, argumentative and pedantic (see [25]).