Western Australia

Family Court

  • Breckenridge & Kudrna [2019] FCWA 9 (10 January 2019) – Family Court of Western Australia
    Parenting orders’ – ‘People with disability and impairment’ – ‘People with mental illness’ – ‘Presumption of equal shared parental responsibility’ – ‘Psychological harm’ – ‘Rebutting the presumption

    Proceeding: Parenting orders.

    Facts: The mother and father had two children and sought parenting orders. The mother maintained that she and the children now suffered significant mental health issues because of the father’s alleged physical and psychological abuse. The father denied these allegations and instead claimed that the mother’s own serious mental health issues have harmed, and continue to harm, the children. Each parent sought orders according sole responsibility of the children and allowing the other parent to have limited supervised visits.

    The mother’s mental health issues created evidential gaps and several contradictions in the evidence she provided. Sutherland J was satisfied that the mother and the children’s psychologist had effectively coached the children to corroborate her story given their impressionable age.

    Issues: What parenting orders are appropriate in the circumstances?

    Decision and reasoning: Sutherland J’s reasoning was guided by Part 5 of the Family Court Act 1997 (‘the Act’)and the Full Court’s decision in Goode & Goode [2006] FamCA 1346 and consequently concerned the underlying presumption that ‘it is in the best interest of the child that the child’s parents have equal shared parental responsibility, subject to the qualifications set out in the relevant section’. Sutherland J provided in relation to this presumption:

    ‘should I make an order for equal shared parental responsibility then I must also consider the obligations placed upon me by s 89AA of the Act which requires me to then consider whether the child should spend equal time or substantial and significant time with each parent.

    In determining the outcome of these parenting matters, I must, pursuant to s 66A of the Act, consider the best interests of the children as the paramount consideration. In determining what is in a child’s best interests, I must consider the matters set out in s 66C of the Act.’ [197]-[198]

    Sutherland J ordered that the father was to have sole parental responsibility for the children, for Child A to receive continued therapeutic support from Child A’s psychologist, and for the mother to eventually be allowed supervised visits. The presumption of equal shared parental responsibility did not apply for the following reasons: (1) Sutherland J was not satisfied that the mother experienced any family violence and/or abuse from the father; and (2) the children suffered significant, ongoing psychological harm while in the mother’s sole care and were at risk of further harm if they remain in her sole care.

  • Janz & Bagley [2018] FCWA 210 (8 November 2018) – Family Court of Western Australia
    Children’ – ‘Physical violence and harm’ – ‘Presumption of equal shared parental responsibility’ – ‘Rebutting the presumption’ – ‘Unacceptable risk

    Proceeding: Parenting orders.

    Facts: The parties had one child and sought parenting orders. The mother sought sole parental responsibility and that the child live with her. She also proposed that the child should not spend any time with the father. The father sought orders that the parties have equal shared parental responsibility; that the child live with the mother while gradually increasing the time she spent with the father; injunctions as to the parties’ alcohol consumption; and non-denigration orders. The father was a self-represented litigant while the mother and ICL were represented by counsel.

    The parties had a history of family violence and the father had used explicit photos of the mother to blackmail her throughout their relationship. The child was exposed to some of this violence during the relationship and to the father’s denigration of and threats towards the mother after the parties’ separation.

    Issues: What are the appropriate parenting orders given the circumstances?

    Reasons: The child had a meaningful relationship with the mother and a close and loving relationship with the father. However, the child was at risk of physical and/or psychological harm while in the father’s care. Duncanson J also found that this, along with the child possibly ‘absorbing’ the father’s negative and unhealthy beliefs and confrontational behaviour, formed an unacceptable risk that could not be managed by mere supervision. With the presumption of equal shared parental responsibility being displaced by the family violence between the parties, Duncanson J ordered the mother have sole parental responsibility and that the child live with the mother. It was also ordered that the child spend no time with the father as he posed an unacceptable risk of harm.

  • Byrne & Krilly [2018] FCWA 158 (23 August 2018) – Family Court of Western Australia
    Children’ – ‘Parental orders’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘People with mental illness’ – ‘Physical violence’ – ‘Relocation orders

    Proceeding: Parenting and relocation orders.

    Facts: The mother and father had one child and sought parenting and relocation orders. Each party sought sole parental responsibility for the child while the ICL proposed the parties have equal shared parental responsibility for him. The mother and ICL proposed that the mother be able to relocate the child the Europe.

    The father had mental health issues and was violent towards the mother. This violence caused the mother to develop severe trauma and a desire to return to her home country to receive the support of her family. The mother described her future in Australia as ‘bleak’ and was of the view her employment prospects would be better back in Europe.

    Issues: What are the appropriate parenting and relocation orders given the circumstances?

    Decision and reasoning: While the child was exposed to family violence during the parties’ relationship and when they were separated, the father addressed the issues causing his abusive behaviour. As such, Duncanson J found that the child did not need to be protected from harm in the care of either parent at the time of proceedings. This, coupled with the findings that the child had a meaningful and loving relationship with both of his parents which was in the child’s best interests to maintain, led Duncanson J to order that the child must spend time with the father despite relocating overseas. As the mother had been the child’s primary caregiver up until proceedings, Duncanson J ordered that the mother have sole parental responsibility; the child live with her; and that the mother can relocate the child to Europe. The presumption of equal shared parental responsibility did not apply because of the history of family violence.

  • Hobbs & Roth [2018] FCWA 163 (21 August 2018) – Family Court of Western Australia
    Children’ – ‘Damaging property’ – ‘Family violence’ – ‘Parenting orders’ – ‘People affected by substance misuse’ – ‘Relocation orders’ – ‘Technology-facilitated abuse’ – ‘Undefended proceedings

    Proceeding: Parenting and relocation orders.

    Facts: The mother and father have one child. The mother was granted leave to proceed on an undefended basis. The mother sought sole parental responsibility for the child and that he live with her. The mother also sought permission to relocate the child to another town; injunctions relating to non-denigration of herself and her sister; and injunctions restraining the father from consuming alcohol while with the child.

    At the time of the proceedings, the child lived with the mother and spent time with the father. The child was exposed to family violence – primarily directed towards the mother – and to problems of excessive alcohol consumption while living in the same town as his father. The father was controlling and abusive. He had slashed the tyres of the mother’s car and threatened to place intimate pictures of her on social media. The mother wished to remove the child from this environment and wanted to relocate due to fear for her own safety.

    Issues: What are the appropriate parenting and relocation orders given the circumstances?

    Decision and reasoning: Although ‘it is to [the child’s] benefit to have a meaningful relationship with the father, this must be balanced against the need to protect [the child] from harm’ [28]. Given the history of family violence and the family violence of the father towards his new partner, there was a need to protect the child from harm while in the father’s care. There is no need to protect the child from harm while in the mother’s care.

    The history of family violence rebutted the presumption of equal shared parental responsibility being in the best interests of the child. Duncanson J ordered that the mother have sole parental responsibility for the child; that the child live with the mother and that she is permitted to relocate him to another town as the mother had been the primary caregiver up until proceedings; and that the child spend time with the father at such times and on such terms and conditions that the mother thought fit.

  • Trigg & Rowland [2018] FCWA 136 (26 July 2018) – Family Court of Western Australia
    Children’ – ‘Family violence’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘Relocation orders

    Proceeding: Parenting and relocation orders.

    Facts: The parties had one child and sought parenting orders and orders regarding the child’s living arrangements. The mother wished to leave the town where they had lived as a family lived and return to her home town. The father, having come from another country, wished to remain in the town as that was were his only connections in Australia were. The father sought orders for sole parental responsibility and proposed that the child live with him four nights a week and with the mother the remaining three provided that the mother can meet all the child’s needs. The mother sought orders for equal shared parental responsibility and orders permitting her to relocate to her hometown. She also proposed that the child predominately live with her.

    There was evidence of domestic violence. The parties were also unable to agree on a form of communication at the time of the proceedings.

    Issues: What are the appropriate parenting and relocation orders for the circumstances?

    Reasons: The presumption in favour of equal shared parental responsibility did not apply due to the issues of family violence. Thackray CJ, however, still ordered equal shared parental responsibility - with the exception that the mother have sole parental responsibility for issues concerning the child’s physical health – as the child had a meaningful relationship with both parties and was found not to be at risk of harm in either parties’ care. Thackray CJ also ordered that for the next few years the child live with both parents on a ‘5-2-2-5’ roster before eventually transitioning to a week-about arrangement.

    In regard to the sought relocation orders, Thackray CJ found that it was in the child’s best interests to remain in the parties’ current town. Thackray CJ considered the dysfunction within the mother’s family in her hometown, the child’s current stability, and the possibility of separating the child from the father to be the main factors supporting this decision.

  • Kazi & Kazi [2018] FCWA 61 (13 April 2018) – Family Court of Western Australia
    Emotional and psychological abuse’ – ‘Exposing children to family violence’ – ‘Parenting orders’ – ‘Physical violence and harm’ – ‘Presumption of equal shared parental responsibility’ – ‘Rebutting the presumption’ – ‘Sexual and reproductive abuse

    Proceeding: Parenting orders.

    Facts: The mother and father have four children and sought parenting orders. The mother proposed that the children continue to live with her and have no communication or contact with the father. The father sought orders that the children spend time with him. The mother’s proposal was based on the parties’ history of family violence and fear of the children’s well-being. The ICL proposed ‘that the children live with the mother who should have sole parental responsibility for them, although the mother should keep the father informed of all significant health issues’ [36]. The ICL also proposed that the two older children spend time with and communicate with the father as they wished while the younger child spend time with him in accordance with their wishes in consultation with a therapist.

    The parties’ relationship was characterised by family violence inflicted upon the mother and the children from the time of their marriage. The mother deposed that the violence directed towards her was both physical and emotional, with the father also often forcing her to have sex against her will. The father was physically abusive towards the children, who were eventually terrified of him. This fear caused psychological harm to the children.

    Issues: What are the appropriate parenting orders given the circumstances?

    Decision and reasoning: The children had a meaningful relationship with the mother and it was to their benefit that it continued. The children did not have a relationship with the father at the time of proceedings and did not wish to. While there was no need to protect the children from harm in the mother’s care, there was a need to protect them from physical and psychological harm in the father’s care.

    The family violence rebutted the presumption that it is in the children’s best interests that their parents have equal shared parental responsibility. Duncanson J ordered that the mother have sole parental responsibility and that the children live with her, but that she inform the father of all significant health issues affecting the children. He found that the mother has the capacity to provide for the children’s needs including their emotional and intellectual needs. Duncanson J also ordered that the father eventually be able to contact the children provided he undertook psychological assessment and subject to the children’s wishes.

  • May and Blackthorn & Anor [2018] FCWA 23 (16 February 2018) – Family Court of Western Australia
    Issues of welfare of children and stability’ – ‘Living arrangements’ – ‘Parenting orders’ – ‘Physical violence

    Proceeding: Parenting orders.

    Facts: Prior to proceedings, the child lived with her paternal grandmother. The child had very limited, if any, contact with the parents. The paternal grandmother sought sole responsibility of the child and for the child to live with her. The orders sought also permit overseas travel, orders for the provision of information and a non-denigration order, and for the child to occasionally spend time with the parents. Prior to the proceedings and the parents’ separation, the father physically assaulted the mother on several occasions, exposing the child to family violence when she lived with them.

    Issues: What parenting orders are appropriate given the circumstances?

    Decision and reasoning: The proceedings were determined under Part VII of the Family Law Act 1975 (Cth) (“the Act”). The objects in Part VII ‘ensure that the best interest of the children are met’ [37]. Given the circumstances, Duncanson J paid specific attention to s 60CC(2) which sets out the primary considerations of the ‘benefit to the child of having a meaningful relationship with both the child’s parents and the need to protect the child from physical or psychological harm’ [42]. Attention was also given to s 60CC(2A) which ‘provides that in applying the above considerations, the Court is to give greater weight to the need to protect the child from harm’ [40].

    In reaching his decision, Duncanson J considered that: (1) the child had neither communicated nor seen either parent for a considerable period of time; and (2) while ‘there was not a need to protect the child from harm in the care of the paternal grandmother’, there was ‘a need to protect [the child] in the care of the father, by reason of drug and alcohol use, and his violent and aggressive behaviour towards others’ [42]. There was also a need to protect the child from the mother’s unstable circumstances. Duncanson J consequently affirmed the orders sought by the paternal grandparent as it was in the best interests of the child.

  • Headley & Steners [2017] FCWA 169 (30 November 2017) – Family Court of Western Australia
    Children’ – ‘Economic abuse’ – ‘Parenting orders’ – ‘People with disabilities and impairments’ – ‘Physical violence and harm’ – ‘Presumption of equal shared parental responsibility’ – ‘Rebutting the presumption

    Proceeding: Parenting orders.

    Facts: The mother sought sole parental responsibility for the children; an injunction restraining the father from approaching either her or the children within 50 metres; and an injunction restraining the father from communication with the mother and children by any means. The father sought equal shared parental responsibility; an order that the children live with the mother; and that the children spend time with the father.

    The parties’ relationship was ‘characterised by significant family violence perpetrated by the father against the mother’ [2], with the father also negatively influencing the mother’s financial position post-separation. The father’s behaviour was partially attributed to the effects of a traumatic head injury which caused loss of inhibitory control, irritability, frustration and verbal aggression.

    Issues: What parenting orders are appropriate given the circumstances?

    Decision and reasoning: The presumption of equal shared parental responsibility did not apply given the parties’ history of family violence. It was open to the judge to make an order for equal shared parental responsibility if, and only if satisfied that despite the presumption not applying it remained in the best interests of the children that such an order should be made [187]. This led Moncrieff J to turn to the primary and additional considerations set out in s 60CC(3) (Family Law Act 1975 (Cth)). ‘The very real difference between the two classes of considerations is that the additional considerations do not all necessarily apply to each and every case whilst the primary considerations do’ [189]. From these considerations, Moncrieff J concluded that ‘the father is incapable of controlling his behaviour and as such the children remain at risk of psychological harm, if not physical harm, and of being exposed to physical abuse of the mother by the father’ [201] and ordered that there should be no contact between the children and their father. It was ordered that the children consequently live with the mother; the mother have sole parental responsibility; and the father be restrained and an injunction be granted restraining the father from approaching the mother or children within 50 metres.

  • Peak & Clearly [2017] FCWA 166 (24 November 2017) – Family Court of Western Australia
    Family violence’ – ‘Parenting orders’ – ‘People affected by substance misuse’ – ‘Relocation orders

    Proceeding: Parenting and relocation orders.

    Facts: The mother and father had one child and sought parenting and, in the mother’s case, relocation orders. The mother sought sole parenting responsibility and for the child to live with her, proposing for the father to be allowed limited visits. The mother also sought an order permitting her to relocate the child to another country. The father proposed equal shared parenting responsibility and for visitation while the child lived with the mother. Both parties sought orders regarding the cost and conditions of travel.

    ‘During the [parents’] relationship the father was overbearing and aggressive and violent. The mother coped by drinking alcohol and was often intoxicated. The parties’ relationship was marred by incidents of violence mostly perpetrated by the father upon the mother. Both parties abused drugs and alcohol. [The child] was exposed to family violence between his parents.’ [130]

    Issues: What would be the appropriate parenting, spend-time and relocation orders given the circumstances?

    Decision and reasoning: When dealing with the issue of parental responsibility, Duncanson J found that the child had a meaningful relationship with both of his parents. It was to his benefit that it continues. However, the history of family violence between the parties rebutted the presumption of equal shared parental responsibility, with Duncanson J finding that it would be in the child’s best interests for the mother to have sole parental responsibility. Duncanson J subsequently ordered that the child live with the mother.

    Turning to the issue of relocation, Duncanson J considered that while the child did have a meaningful relationship with his father, he had a much deeper relationship with and dependency on his mother. Although it may be initially distressing for the child to be separated from the father if permitted to relocate to another country, the separation would minimise the risk of exposing the child to harm and be in his best interests. The father will still be able to spend time with the child several times a year and will be able to communicate with him electronically.

  • Richey & Morty [2017] FCWA 113 (19 September 2017) – Family Court of Western Australia
    Children’ – ‘Parenting orders’ – ‘Physical violence and harm’ – ‘Presumption of equal shared parental responsibility’ – ‘Property settlement’ – ‘Rebutting the presumption’ – ‘Self-represented litigant

    Proceeding: Parenting and financial orders.

    Facts: The parties had two children and sought parenting and financial orders. The father sought orders for equal shared parental responsibility; the children live with both parents on a week about basis; regular telephone communication with the children; and injunctions restraining the parties from denigrating each other. The father also proposed that each party retain their own property and superannuation and for payments from the mother. The mother sought orders ‘apportioning’ parental liability 80%:20% in her favour. She also proposed that the children predominately live with her and sought orders to alter her property interests such that she received half of the father’s superannuation, child support payments and cash payment for the parties’ shared car.

    The mother was a self-represented litigant. O’Brien J was satisfied she understood his explanation of the trial’s processes and his obligations.

    There were two separate violent incidents between the parties’ post-separation, however there was no evidence to suggest a history of family violence while the parties were married.

    Issues: What parenting and financial orders are appropriate for the circumstances?

    Reasons: O’Brien J first dealt with the parenting orders sought by the parties and provided that the presumption that equal shared parental responsibility is in the best interests of the child is rebutted if there are reasonable grounds to believe that the child was exposed to family violence.

    ‘The phrase “reasonable grounds to believe” is not unimportant. The legislation does not require that abuse or family violence be proven for the statutory presumption to be displaced; it is sufficient for there to be reasonable grounds to believe that a party has engaged in abuse or family violence. [59]

    O’Brien J found that the presumption did not apply because the two children were exposed to family violence during the second of the two separate violent incidents that occurred post-separation. Despite this, O’Brien J also found that the children were not at any risk of physical or psychological harm in the care of either party. Upon also finding that both parties have the capacity to provide for all of the children’s needs, O’Brien J ordered equal shared parental responsibility and that the children spend equal time with each parent.

    In turning to the competing financial orders sought by the parties, O’Brien J stated that

    ‘the court has a wide discretion conferred by s 79(1) of the Act. That discretion is to be exercised in accordance with legal principle, and without assuming that the parties’ interests in assets, or responsibilities for liabilities, are or should be different from those determined by common law and equity. The court must be satisfied that it is just and equitable to make an order adjusting existing property interests, including equitable interests. That requirement is readily satisfied in most cases, including this one…In determining what orders will be just and equitable, the court’s power is not confined by any ‘steps’ or ‘stages’, let alone a prescribed sequence of such.’ [135]

    The parties were found to have a total net pool of -$3,932.00, with most of the liabilities being the joint responsibility of the parties. It was also found that ‘neither party retain[ed] reliable assets of any real value’. O’Brien J consequently ordered that ‘the only just and equitable outcome achievable’ was that each party retained their assets and, considering the mother being currently unemployed, that the father retain responsibility for the liabilities.

    O’Brien J then considered the child support orders sought be the mother. O’Brien J declined to provide the orders sought as the mother did not provide sufficient evidence to justify them.

  • Finton & Kimble [2017] FCWA 106 (24 August 2017) – Family Court of Western Australia
    Family violence’ – ‘Parenting orders’ – ‘Presumption of equal parental responsibility’ – ‘Unacceptable risk

    Proceeding: Parenting orders.

    Facts: The father and mother had two children and sought parenting orders. The father sought orders for equal shared parental responsibility and for the children to live with their mother while also spending time with him. The mother sought orders for sole parental responsibility, the children to live with her, for the children to not spend time with the father and for the issuing of passports to the children without the father’s consent. The Independent Children’s lawyer (ICL) submitted that the orders which best meet the children’s interests were as set out by the mother.

    The children’s parents separated when the children were very young. ‘The relationship between the parties has been described as one of significant conflict and domestic upheaval. Their separation was surrounded by allegations of violence, abuse and aggressive and erratic behaviour, levelled against the husband in particular’ [6]. ‘In the period following separation, the husband’s life descended into turmoil and conflict. There is evidence of significant hostility, anger and threatening behaviour directed by the husband towards a wide range of people and institutions’ [9].

    The children were in the mother’s care after the parties separated and had limited opportunity to form a relationship with their father.

    Issues: Should the parties have equal shared parental responsibility for the children?

    Decision and reasoning:

    Walters J provided that

    ‘[t]he Court’s paramount consideration is the welfare or best interests of two very young girls. The history of this case and the legitimate concerns and aspirations of the parents are matters which must be taken into account – but it is the children’s future, welfare and best interests upon which the Court must concentrate. The Court is responsible for determining what orders best meet their needs and advance their interests – including the need to be protected from the risk of harm… The Court has no interest in or enthusiasm for rewarding one party or punishing the other. Its preoccupation is with, and concentration is on, the best interests of the children…Generally speaking, what parties do, how they behave and the attitudes that they display towards their roles as parents or carers are far more relevant to the decision process in a parenting case, and of much greater significance, than the vague and often highly complex emotion known as love.’ [59]-[105]

    Here, the father demonstrated ‘an “entrenched pattern of abusive behaviour over a significant period of time”…The husband seems to have been oblivious to or unconcerned about the real or potential harm he caused or could have caused others’ [109]. Any spend time orders or orders allowing the children to communicate with the father were determined likely to cause the mother ‘significant psychological detriment – and in turn, psychological harm to the children’ [120]. This, coupled with the fact that the mother was deemed to have the capacity to sufficiently provide for the physical, emotional and intellectual needs of the children led Walters J to decide that ‘[i]t [was] not in the children’s best interests to spend any time with the husband’ despite his belief that ‘it is a grave and far-reaching step for a Court to deprive children of a relationship with a parent – or, put another way, to deprive a father of a relationship with his children’ [191]-[192]. Stemming from this belief, Walters J noted that

    ‘[p]arenting orders are not ordinarily regarded as “final” and immutable. If circumstances change significantly, and in a manner that relates to the best interests of the children, then there is a possibility that the orders I propose to make can be revisited – and, if required in the children’s best interests, varied’ [195].

  • Vieri & Vieri [2017] FCWA 101 (9 August 2017) – Family Court of Western Australia
    Children’ – ‘Parenting orders’ – ‘People with disability or impairment’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Presumption of equal shared responsibility’ – ‘Rebutting the presumption

    Proceeding: Parenting orders and property settlement orders.

    Facts: The mother and the father had two children and sought parenting and property orders. For the parenting orders, the mother sought sole parental responsibility, for the children to live with her, and proposed that the father be allowed to spend time with the children. The father sought equal shared parental responsibility and for the children to live with both parties on a fortnightly cycle.

    For the property orders, the mother sought an order that the father transfer his interest in the former matrimonial home to her and she would refinance the mortgage to Bankwest into her sole name. She also sought to have a car transferred to her, proposing a 7:3 division in her favour. The father proposed to transfer the above home to the mother and refinance the mortgage into her sole name contemporaneously with the transfer. The father also sought for the mother to pay him $250,000 from the transfer. Both parties sought to retain all other assets and superannuation. The property pool was estimated to be around $900,000.

    Both children have been diagnosed with medical conditions. The parties did not communicate well and the mother did not keep the father informed of important issues regarding the children’s health. The mother frequently denied the father’s requests to see the children and had a Violence Restraining Order against the father.

    Issues: What are the appropriate parenting orders given the circumstances?

    Decision and reasoning:

    Parenting Orders

    The presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility for the child ‘does not apply in circumstances where there is abuse or family violence. The presumption may be rebutted by evidence which 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.’ Notwithstanding this presumption, [Duncanson J was] of the view that it is in the children’s best interests that their parents have shared parental responsibility for most, but not all long-term issues. In all but medical issues, I think both parties should jointly make the decisions.’ This decision was based on Duncanson J’s findings that the children had a meaningful relationship with both of their parents and it was to their benefit that it continued. The children were not at risk of harm in the care of either parent - although they had previously been exposed to conflict between the parties - and both parties have the capacity to provide for the children’s needs.

    Duncanson J ordered an increase in the time the children spent with the father, but predominantly live with the mother during school terms. Keeping in mind the children’s disabilities and anxiety, this increase was to be implemented incrementally.

    Property Orders

    The proceedings were governed by s 79 of the Act and the decision in Stanford v Stanford (2012) 247 CLR 108. Having regard to the mother’s care of the children, the father’s superior earning capacity and the father’s property entitlement comprising significant superannuation benefits, Duncanson J divided the property in favour of the mother, ordering a 6:4 division.

  • Rhodes & Lewington [2017] FCWA 75 (6 June 2017) – Family Court of Western Australia
    Children’ – ‘Parenting orders’ – ‘People with mental illness * psychological harm’ – ‘Presumption of equal shared parental responsibility’ – ‘Property settlement’ – ‘Rebutting the presumption’ – ‘Unacceptable risk

    Proceeding: Parenting and financial orders.

    Facts: The mother and father had two children and sought parenting and financial orders. The proceedings primarily concerned whether the children should have any contact with their father. The mother sought sole parental responsibility and orders that the children live with her. The father sought equal shared parental responsibility and shared care of the children.

    The father often deceived and manipulated the mother, children and people around him during the parties’ relationship, feigning several severe and terminal illnesses. Through this deception, he spent large sums of the parties’ money for personal use (such as travel and accommodation) under the guise of paying for medical treatment. The father also frequently threatened the mother and occasionally their children, leading the mother to apply for a Violence Order.

    Issues: What parenting and financial orders are appropriate given the circumstances?

    Decision and reasoning: the presumption of equal shared parental responsibility did not apply because of the father’s psychological abuse of the children. Walters J found that that the father’s psychological abuse of the children displaced the presumption of equal shared parental responsibility. He also found that the father’s behaviour amounted to an unacceptable risk to the children’s psychological and emotional wellbeing. As such, Walters J ordered that the mother have sole parental responsibility and that the children not have any contact with the father.

    The parties had a net property pool of $970,381. Upon considering the father’s spending while deceiving the mother along with his limited contributions towards household expenses and the children while the parties were together, Walters J ordered that the mother receive 84% of the net property and superannuation.

  • Dempsey & Brahms [2017] FCWA 59 (12 May 2017) – Family Court of Western Australia
    Children’ – ‘Family violence’ – ‘Presumption of equal shared parental responsibility’ – ‘Rebutting the presumption

    Proceeding: Parenting orders.

    Facts: The mother and father have two children and sought parenting orders. The father proposes that the older child decides where he lives with a week-about arrangement for the younger children (save for the holidays when they would spend up to two weeks with each parent). The mother sought sole parental responsibility; for the children to live with her; and for the children to only spend time with the father subject to her consent. The ICL proposed that the mother have sole parental responsibility.

    The father sought to undermine the children’s relationship with the mother and after the parties’ separation threatened the mother on several occasions. The father’s negative attitude towards the mother influenced the oldest child’s opinion of and behaviour around her, with the child eventually mimicking some of the father’s negative behaviours. While the oldest child did leave the mother’s home to live with the father for two years, he eventually returned and had a hostile relationship with the father until the time of proceedings.

    Issues: What are the appropriate parenting orders in these circumstances?

    Decision and reasoning: Thackray CJ ‘did not doubt’ that there were great benefits to the children having a meaningful relationship with their mother. ‘She [was] focused on their well-being and has been their primary caregiver. She [was] a stable and steadying influence’ [109]. On the other hand, the father’s conduct towards the mother and children was damaging. ‘[T]he benefit to the children of having a meaningful relationship with their father [was] outweighed by the importance of protecting them from the harm that often arises when they spend time with him’ [110]. Thackray CJ provided that the presence of family violence rebutted the presumption of equal shared parental responsibility and that it was inappropriate for the parents to share responsibility given their inability to communicate.

    Thackray CJ ordered the mother have sole parental responsibility for the three children; the children live with the mother; and that the children only spend such time with the father as the mother deemed appropriate.

  • 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]).