BELINSKY and CLEARY
[2019] FCWA 255
•3 DECEMBER 2019
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: BELINSKY and CLEARY [2019] FCWA 255
CORAM: TYSON J
HEARD: 5, 6, 7 and 8 FEBRUARY 2019, 18, 19, 20 and 21 NOVEMBER 2019
DELIVERED : 3 DECEMBER 2019
FILE NO/S: PTW 4299 of 2018
BETWEEN: MS BELINSKY
Applicant
AND
MR CLEARY
Respondent
Catchwords:
FAMILY LAW – Child-related proceedings – Where the child is 2 years of age – Where the parties do not agree on parental responsibility and with whom the child should live - Where the child lived with the mother since separation until 30 July 2019 – Where the child has lived with the father since that time – Where the mother subsequently left Australia and has not spent time with the child – Where the mother’s visa has expired and she is unable to reside in Australia – Where there has been leave to reopen the case - Where the mother seeks to relocate the child to Russia – Where the father seeks the child remain in Australia with him – Where both parents have experienced difficulties with mental health and alcohol abuse - Where the mother denies her difficulties and has admitted to falsifying test results – Where the mother’s family are unable to act protectively as a result of their views about the mother’s health and alcohol dependence – Where there is an Independent Children’s Lawyer and Single Expert Witness – Best interests - Case turns on its own facts
Legislation:
Family Law Act 1975 (Cth)
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Mr Klimek/Self Represented Litigant |
| Respondent | : | Mr Bloxham |
| Independent Children's Lawyer | : | Mr M / Ms C |
Solicitors:
| Applicant | : | Klimek Family Law/Self Represented Litigant |
| Respondent | : | Bloxham Legal |
| Independent Children's Lawyer | : | Legal Aid WA |
Case(s) referred to in decision(s):
Zahawi & Rayne [2016] FamCAFC 90
TYSON J:
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
IT IS NOTED that publication of this judgment by this Court under the pseudonym Belinsky and Cleary has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
1 [Ms Belinsky] and [Mr Cleary] are the parents of [V], who is two and a half years of age. The mother was V’s primary carer until 30 July 2019. Since then, V has been living with her father. The central issue in dispute is which parent V should live with. The mother seeks V live with her and permission to relocate to Russia. The father seeks V live with him in Perth. The case focused on the risks to V, in each parent’s care. Those risks include allegations of alcohol abuse, use of illicit substances, mental health concerns and competing allegations of family violence.
2 I must determine what arrangements are in V’s best interests. V is fortunate to have two parents who love her and want the best for her. Unfortunately, V’s parents are unable to agree on what those arrangements should be. Both parents are vulnerable and have experienced many difficulties.
3 For the reasons that follow, I have concluded it is in V’s best interests to remain in her father’s care and for him to have sole parental responsibility. I have determined V should spend supervised time with her mother in Perth and otherwise have electronic communication with her.
WHAT IS AGREED?
4 It is agreed that:
•It is in V’s best interests to maintain a meaningful relationship with each parent, provided she is safe from harm.
•V is too young to express any views.
•It is important for V to maintain a connection with her Russian and Australian heritage.
•The Court should make orders that are the least likely to lead to further proceedings.
•The parent with whom V is to live, should have sole parental responsibility.
•The father should be able to travel with V.
•V is now to be vaccinated.
•Both parents should be restrained, on a without admission basis, from consuming alcohol or illicit substances and denigrating the other parent to or in the presence of V.
5 Regardless of the outcome of the proceedings, the father intends to live in Perth and the mother intends to live in Russia, unless she obtains residency in Australia. There are practical difficulties and expenses associated with V maintaining contact with either parent, in these circumstances. The father works part-time and the mother currently is not working, which contributes to these difficulties.
WHAT IS IN DISPUTE?
6 The parties do not agree where V is to live, which parent is to have sole parental responsibility and the arrangements for V to spend time and communicate with the other parent, amongst other issues.
7 In determining what arrangements are in V’s best interests, I must consider whether V is at risk of harm in either parent’s care, the capacity of each parent to provide for V’s needs and to promote and support V’s relationship with the other parent, the extent to which each parent has taken opportunities to spend time and participate in major long term decisions for V and the likely effect of any changes in V’s circumstances.
WHAT ARE THE PROPOSALS OF THE PARTIES?
8 The ICL supports V remaining in her father’s care and him having sole parental responsibility, on the basis he is to consult with the mother prior to making any major long term decisions. She proposes V spend supervised time with the mother, if the mother lives outside of Australia. If she lives in Australia, then over a 12 month period, the mother have supervised visits while undergoing hair testing and engaging with a mental health practitioner. If the mother’s results are clear of illicit substances and alcohol, if she provides evidence of her mental health treatment and has stable accommodation, the ICL proposes the time move to be unsupervised during the day only and thereafter, the time extend to overnight visits once each fortnight, on the basis there are further clean tests. She proposes electronic communication three times each week and on special occasions, in addition to other orders. She seeks the father take V to a Russian Orthodox Church on special occasions, if the mother does not live in Australia. She proposes each parent continue to attend on their health practitioners and comply with their recommendations. She seeks the mother complete an age appropriate parenting course and various injunctions to restrain the mother removing V from the father’s care.
9 The father supports the position of the ICL, save he seeks if the mother lives in Australia, she have supervised visits and undergo hair testing over a two year period, instead of 12 months. He seeks to change V’s name to [Belinsky-Cleary] and that he be relieved from disclosing his residential address to the mother.
10 The mother seeks V live with her and she be permitted to relocate to Russia. She seeks sole parental responsibility and V spend time with the father on a “three night/one night rotation” in a country, such as Singapore, being midway between [Russian City A] and Perth. When V is five years old, she proposes the time increase to block periods of two weeks each year in Australia and Russia and otherwise as agreed. She proposes V have electronic communication with the father twice each week and V be removed from the Watchlist.
11 If V is not permitted to relocate, the mother seeks V live with her, on the basis the mother has a valid Australian visa, and spend four nights each fortnight with the father and the family travel with V to [Latvia] from 30 December to 9 January each year. If V is required to live with the father, she seeks V travel to Latvia each year and on the basis she has a valid Australian visa, the mother spend time with V on two nights each fortnight and additional visits. She also seeks orders to facilitate V spending time with the maternal grandparents for two weeks each year in Perth.
12 The mother opposes any change to V’s name and seeks to be advised of the father’s address. The ICL did not express any position on these two matters.
BACKGROUND FACTS
13 The mother was born [in] 1983 in Russia. She is a qualified [social worker] and has worked in [human resources] in Russia. The father was born [in] 1991 in Australia. He is [a security officer] but has recently obtained qualifications in [information technology].
14 In March 2015 the parties began a relationship. At that time, the mother was separating from her husband [Mr K]. The parties travelled to Latvia that month for a two week holiday.
15 On 20 October 2015 the parties moved to Russia. In February 2016 the mother suffered a miscarriage. [In early] 2016 the parties married in Russia. The mother fell pregnant with V, who was born [in early] 2017 in Russian City A. V has both Russian and Australian citizenship.
16 [In] June 2017 the father travelled to Perth, before returning a week later to Russia.
17 In July 2017 the parties separated on a final basis when the father returned to Australia. The father says he was escorted out of the country by the maternal grandfather’s employees. This was denied by the grandfather and was not the topic of cross-examination.
18 In September 2017 the mother and V moved to Latvia. The father visited for a week, when the parties reconciled. In October 2017 the father returned to Latvia, with the mother paying for his one way flight.[1] He successfully applied for a visa before returning to Australia on 20 October 2017. The father’s Latvian visa expires in February 2020.
[1] Exhibit 1, tendered 5 February 2019 – The itinerary sent for the father for the 5 October 2017.
19 [In] December 2017 the mother and V travelled to Perth and visited the father, before returning to Latvia in early January.
20 On 2 June 2018 the mother threatened to end her relationship with the father if he told the maternal grandfather of her suicide attempt. At this time, the father considered the marriage had already ended. On 4 June 2018 the mother and V returned to Australia to visit the father. The father says the mother was under the influence of alcohol, which she denies. The mother left V in the father’s care. The police recorded the father reported the maternal grandfather sent the mother to deliver V into his care and the mother was returning to Russia.[2] I do not accept that was the case, given the unequivocal evidence of the mother and her father, which I prefer, namely that the parties were attempting a reconciliation. That was also corroborated by the fact only one way tickets were bought for the mother and V. The father disputed the police records and said they misunderstood him.
[2] Exhibit 31 – The police incident report of the 4 June 2018.
21 On 4 to 7 June 2018 the mother sent repeated messages to the father asking to spend time with V, which he refused.[3]
[3] Exhibit 3, tendered 5 February 2019 – The WhatsApp exchange between the mother and the father from 1 to 10 June 2018.
22 On Friday 8 June 2018 the Court granted a recovery order, requiring V to be returned to her mother’s care. Interim orders were made for V to live with her mother. The father was concerned the mother would try to remove V. He obtained an ex parte injunction restraining V from leaving Australia and she was placed on the Australian Federal Police Watchlist. On 11 June 2018 the mother arrived at Perth International Airport with V, who was prevented from leaving as a result of those orders.
23 On 15 June 2018 interim consent orders were made for V to spend time with the father on three days each week, in the mother’s presence. On 13 June 2018 the father filed a Notice of Risk, claiming V was at risk of abuse and neglect in her mother’s care as a result of excessive alcohol and marijuana use. He alleged the mother had dropped V when under the influence of substances, she had repeatedly punched him in the stomach and she had told V that he did not love her. He cited other occasions when the mother became violent including smashing plates, scratching his neck and threatened that her father could have him killed and/or removed from Russia.
24 On 31 August 2018 the Department of Communities responded to the Notice, advising they had conducted a preliminary assessment and no action was required.
25 On 25 July 2018 the parties attended a Case Assessment Conference. The parents agreed for V to spend unsupervised and additional time with her father. The mother agreed to undergo a liver function test and to be restrained from consuming alcohol when caring for V. The father agreed to complete courses as recommended.
26 Each parent acknowledged to the Consultant having been diagnosed with depression. The father said he had not taken antidepressant medication for over two years. He admitted to self-harming, but advised he had not done so in the last two and a half years. The father explained he had replaced medication with positive thoughts and exercise and he enjoyed ongoing support through attending Dads in Distress. The mother acknowledged being prescribed antidepressant medication, which she never took. She confirmed she had self-harmed, including cutting her forearm on 2 June 2018. She reported having ongoing support through [Counselling Service A].
27 The mother said she had had drunk for several days when she arrived in Perth in December 2017. She reported having quit consuming alcohol two and a half months ago. She acknowledged being hospitalised in 2015 and 2016 after suffering seizures due to alcohol withdrawal. The Consultant was provided with each party’s hair strand test results. The father’s results were clean. The mother’s results were positive for cannabis and excessive alcohol consumption.
28 The father said his greatest concern was V being abused or neglected in the mother’s care, as a result of excessive alcohol and cannabis use. The mother reported her concern around the father’s “emotional stability” and claimed he lacked parenting experience.
29 The parties have attempted to reconcile on multiple occasions, the most recent in September 2018. The father has lived primarily with his brother and sister-in-law until this year. The mother has not had stable accommodation since separation: she has lived with Mr K and his family, on her own and also with various third parties.
30 On 12 October 2018 Mr K contacted the police at 2.40 am raising concerns that the mother had gone out on a date, leaving V in his care. She had not come home and Mr K had been unable to contact her. He filed a missing persons report.[4]
[4] Exhibit 14 – The police incident report dated 12 October 2018.
31 The mother said she applied for divorce in Russia in December 2018, which was granted [in] April 2019. The father says the certificate of divorce which the mother produced is forged. From his enquiries, the parties’ marriage has not been dissolved, which is corroborated by disclosed documents. While the mother says she was the victim of a “false document” I do not accept her evidence, in light of the mother’s history of falsifying documents, to which I will refer in more detail below.[5]
[5] Exhibit 1, tendered 18 November 2019 - The affidavit sworn by the mother on 15 October 2019, paragraph 18.
32 On 3 January 2019 the ICL requested the mother undergo a hair test. The mother said she could not complete the test, because she had shaved and bleached her head prior to the request. Initially the father stated he did not see the mother with a shaved head until 13 January 2019, but later recanted that evidence and said he was confused. I am unable to make any findings as to whether the mother cut her hair before or after the ICL’s January request. The evidence supports a finding that the mother has consistently sought to deny her alcohol use and further, actively taken steps to attempt to prevent the Court having evidence which she does not consider assists her case.
33 The trial commenced in February 2019. At that time, the mother sought to relocate with V to Latvia. After completion of the evidence, the proceedings were adjourned for closing submissions.
34 The mother then applied for leave to reopen, advising her and V’s Latvian visas had been cancelled. She subsequently sought to relocate to Russia. Given the significant change in the mother’s proposals, the proceedings were adjourned part-heard.
35 At the commencement of the trial, V was spending three days a week with the father. In February 2019, the parties agreed to extend V’s time with the father to each alternate weekend from Saturday morning until Sunday afternoon on two occasions and thereafter V also spend each Wednesday evening to Thursday noon with her father.
36 In March 2019 further consent orders were made extending V’s time with her father on each alternate weekend from Saturday morning until Sunday evening, on each intervening Saturday during the day, and on each Tuesday morning until Wednesday evening.
37 In late May 2019 the mother unsuccessfully applied to renew her spousal visa, obtained through her previous marriage to Mr K, who is a [Country A] citizen. The mother travelled to Australia for the trial on a tourist visa and says she has not applied for a bridging visa. The mother may be eligible for an employment visa that would allow her to live in Australia. She has not made any such application and her prospects of success appear remote.[6]
[6] Oral evidence of [Ms J].
38 On 8 June 2019, the mother suspended V’s increased time with the father, reverting to the arrangements set out in the March 2019 orders. The mother alleged her relationship with V had “become damaged” and claimed V was displaying “symptoms of insecurity… lack of trust… and discipline”.
39 The ICL sought the mother undertake both urine analysis testing and hair analysis testing throughout 2019. The mother produced test results which were negative for alcohol including urine tests on 18 March 2019, 27 March 2019 and 19 June 2019, together with hair analysis testing on 20 March and 20 June 2019.
40 In July 2019 the father asserted he smelt marijuana on Mr K, at the mother’s home when he arrived to collect V. The mother was reportedly unwell and eventually came outside, when the father claims she was stumbling and she too smelt of marijuana. The father left and requested the police conduct a welfare check.
41 On 22 July 2019 the ICL requested both parents undergo a urine test by 5 pm that day and for the results to be sent directly by the testing service to her. The mother’s results were not sent directly, despite the request. The ICL made enquiries with Western Diagnostic, who confirmed the test results which the mother provided to the ICL did not match their records. Western Diagnostic advised the mother had completed two tests, as the first sample was too dilute. Brassets similarly advised the ICL that the mother’s hair test results which she had provided, did not match their records.
42 On 30 July 2019 the ICL wrote to the parties, serving the subpoena to Western Diagnostic and Brassets and raising concerns that the mother’s results had been altered to remove reference to her alcohol use.[7] The ICL supported V remaining in her father’s care until the hearing on 2 August 2019, when the subpoena was returnable.
[7] Exhibit 11 tendered 20 November 2019 – Letter from Legal Aid to Bloxham Legal and Klimek Family Law dated 30 July 2019.
43 The mother has since admitted she provided false test results to the Court. She admits she:
(a)Produced false hair test results dated 20 June 2018. She had not in fact undergone any test.[8] The mother says she did so because of lack of funds. I do not accept her explanation, given the ICL advised that Legal Aid would pay the costs of the test.[9]
(b)Altered urine test results from 23 July to 22 July 2019. She says on 22 July 2019 she mistakenly had a light beer.[10] Her initial test was too dilute and detected alcohol. She underwent a further test the following day, changed the date and submitted that to the ICL, removing the reference to the detection of alcohol.
[8] Exhibit 1, tendered 19 November 2019 - The mother’s affidavit sworn 15 October 2019, paragraph 74.
[9] Exhibit 8, tendered 19 November 2019 – The letter from the ICL to the parties dated 6 June 2019.
[10] Exhibit 1, tendered 18 November 2019 - The mother’s affidavit sworn 15 October 2019, paragraphs 76-77.
44 Consent orders were made on 2 August 2019 for V to live with her father and spend supervised time with her mother. No supervised visits took place as the mother left Australia on around 12 August 2019, without notice to the father. V’s removal was plainly a traumatic event for the mother.
45 On 12 July 2019 the father moved into his current rental accommodation. The paternal grandmother has lived with the father since late October 2019. The mother has recently completed her intake appointment to facilitate supervised visits, which have not yet commenced.
46 V has had Skype contact with her mother on around seven occasions since 2 August 2019. The father says he has asked the mother to commence regular Skype contact with V but she has not done so. It appears the mother may have had limited access to her phone while hospitalised.
47 On 18 September 2019 the mother messaged the father asking to see V, stating “I almost died”.
48 In September 2019 the mother took 20 tablets and 100ml of Hawthorn Tincture, in a suicide attempt. The mother has little recollection of these events.
49 An agreement was reached between the mother’s parents, which resulted in the maternal grandmother driving the mother from Latvia to Russia, where the maternal grandfather’s employees collected her and she was admitted to [a mental health clinic]. The mother’s condition was not stable and she continued to express thoughts of self-harm and aggression. She was then admitted to a psychiatric hospital. Upon admission the mother was diagnosed with depression with suicidal statements, and a traumatic psychological event.[11]
[11] Exhibit 2, tendered 18 November 2019 - The mother’s discharge summary.
50 The mother remained in hospital from 10 September until 1 November 2019. Her discharge summary recommended counselling and psychiatric treatment, individual psychotherapy and ongoing medication including Amitriptyline, Valproic acid and Chlorpromazine.
51 Upon the mother’s discharge, she made plans to travel to Australia for the trial. She has not yet had the opportunity to take up the treatment recommended, but says she continues to have the assistance of [Ms F], who is a family friend and psychotherapist. Ms F was the mother’s McKenzie friend during the trial. She was not a witness.
52 The mother confirmed her father paid for herself and Ms F to attend the trial in November 2019, including their accommodation. The mother failed to lead any evidence at the resumed trial about her health, including evidence about her recent hospitalisation, her treatment, her progress and the reason for the prescribed medication.
Single Expert Witness
53 [Dr M] is a clinical psychologist who was appointed as the Single Expert Witness. She provided three reports dated 2 January 2019, 18 July 2019 and 4 November 2019. She also gave oral evidence and was cross-examined at length during both the February and November 2019 trials. She was balanced, measured and professional in giving evidence. Dr M’s evidence was of assistance to me and was delivered in a very helpful manner.
54 In her first report, Dr M wrote:[12]
In conclusion, the issue of relocation in this matter is complicated in that there are very real concerns about the mother, and allowing her to relocate will cut the involvement of the father, and will put her below the radar for accountability. However, the father having full care will be complicated by the mother not being in the country and only having limited visa options. The ideal situation would be somewhere they can co-parent to allow options if one or other party has significant issues preventing them from parenting.
[12] Paragraph 143.
55 Dr M prepared an updated report in November 2019. She observed V in her father’s care, inspected the parties’ trial material and interviewed the father. She did not interview the mother, who was not in Australia.
56 Dr M noted the significant changes since her last report, including the mother’s advice that she had returned to Russia and was then in hospital receiving assistance for depression, due to separation from V.
57 The father reported that since V had been placed in his care, he was working three days a week and he hoped to work in information technology, when V commenced day care. V was then not eligible to do so, as a result of not being vaccinated because of the mother’s opposition.
58 Dr M noted the mother’s admission of falsifying test results suggested she continued to struggle with alcohol use, but more significantly, was indicative of a tendency to be dishonest around significant details. The Expert recorded the mother’s statement that she had experienced a mental breakdown and depression, but no documents had been disclosed at that time. Dr M stated while the mother advised she had been receiving online psychological treatment since 2018, there was no evidence from her treating physician, nor any details as to what the therapy was addressing.
59 Dr M observed V to be happy, settled and secure in her father’s care. She found the father appeared to be appropriately attending to her needs, including seeking input about V’s speech development. The Expert observed a good relationship between father and child and did not consider V was at risk of harm in her father’s care.
60 Dr M considered V was at risk of psychological and emotional harm in her mother’s care, given the mother had sought to mislead the Court about her test results, the lack of evidence about her health and hospitalisation, together with concerns about the mother’s unstable living arrangements in Australia. She considered V was at risk of neglect by not being vaccinated and raised concerns about the mother’s capacity to recognise and provide for V’s psychological and emotional needs due to her mental health and suspected ongoing use of alcohol. Dr M said the mother’s decision to leave Australia without notice, had the potential to harm V who may feel abandoned.
61 By the time of the resumed trial, Dr M had inspected the subpoenaed material and the exhibits. In light of the updated evidence Dr M maintained her recommendation that V should remain with her father, where she was safe. She repeated her concerns that V was at risk in her mother’s care in light of her health and alcohol use, including her admitted relapse in July 2019. The Expert detailed at some length, the various risks to V in spending unsupervised time with her mother, until the mother’s health had stabilised, she had addressed her difficulties with alcohol and the use of any illicit substances. Dr M recommended the mother complete parenting courses to assist her to better understand V’s needs. She also recommended the mother engage with psychiatric and psychological assistance, with independent health practitioners, to avoid any potential shame and barriers to the mother’s treatment. Dr M considered there may be potential conflicts and difficulties with the mother successfully seeking treatment with Ms F, who was a family friend and given the cultural sensitivities discussing personal difficulties.
WHAT IS THE LAW?
62 These proceedings are determined pursuant to the Family Law Act 1975 (Cth). The legislation is strongly in favour of both parents being included in their child’s lives and the requirement to treat V’s best interests as the paramount consideration. In doing so, I will be guided by the relevant objects of the legislation and the principles underlying them. The stated objects aim to ensure that the best interests of a child are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning care, welfare and development of their children.
63 When making a parenting order, the Court must apply a presumption that it is in the best interests of the child for parents to have equal shared parental responsibility. It is a presumption that relates solely to the allocation of parental responsibility. It is not a presumption about the amount of time a child spends with each parent.
64 The Act makes provision that the presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in family violence, which is defined in the Act. The Act sets out how to determine what is in a child’s best interests and the requirement to consider the primary and additional considerations. I am required to give greater weight to the primary consideration.
65 It is necessary for me to give careful consideration to the proposals of the parties and to determine the arrangements which are likely to promote V’s best interests. I am mindful that V’s best interests are the paramount consideration, but not the only consideration.
66 In Zahawi & Rayne [2016] FamCAFC 90 the Full Court said:
47All applications for parenting orders before the court involve a situation that, axiomatically, is not in the children's best interests. What is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents' proposals embraced in competing applications involve, again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children's best interests. Concomitantly, Gummow and Callinan JJ said in U v U:
“…The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.”
(citations omitted)
WHAT IS THE EVIDENCE RELIED UPON?
67 The mother relies upon her affidavit and financial statement filed 26 September 2018, her updating affidavits filed 19 July 2019 and 8 November 2019, the affidavits of Mr K filed 1 October 2018 and 19 July 2019, [Ms L Belinsky] filed 1 October 2018, [Ms Y] filed 19 July 2019, [Mr S Belinsky] filed 4 October 2018 and 19 July 2019, and [Mr Z] filed 19 July 2019. By consent, [Ms J] from [Law Firm A] gave oral evidence and was cross-examined.
68 The father relies upon his financial statement filed 25 January 2019, his trial affidavit filed 13 November 2018 and 23 September 2019, together with the affidavits of [Ms U] filed 12 December 2018, [Ms R] filed 12 December 2018 and 7 October 2019, [Ms E Cleary] filed 12 December 2018 and 7 October 2019 and [Mr B Cleary] filed 7 October 2019.
69 The ICL relies upon the affidavit of [Ms N] filed 23 January 2019. The parties each relied upon the Case Assessment Conference memorandum and the Expert’s reports. A number of documents were tendered by consent.
IS THERE A NEED TO PROTECT V FROM HARM?
Family Violence
70 Each party has made a number of allegations that they have been the victim of family violence, at the hands of the other. Each party largely denies the allegations raised by the other. There is no current family violence order in place.
71 Dr M considered both parents demonstrated cluster B personality traits and in her view, at times they were volatile towards one another, which was likely compounded by the mother’s drinking.[13] I agree. I consider that when the parties were together, particularly at times when they drank alcohol to excess and where they each experienced poor health, there was mutual violence and aggression between them. I accept the parties yelled and shouted at one another, and there were physical altercations in which both parties were involved.
[13] Single Expert Witness report dated 2 January 2019, paragraph 92.
72 However, I am not satisfied that there are any current risks of family violence on the basis the parties do not come into contact with one another. The allegations raised were primarily historical in nature. The exception is the incident on 21 July 2019, when there was an altercation between the mother, Mr K and the father. I am satisfied on that date the mother was under the influence of either alcohol or substances, she and Mr K were verbally abusive to the father, in V’s presence.
73 There is no suggestion of any ongoing violence. On the basis that the parents do not come into direct contact with one another, I am not satisfied there is any risk of future violence.
Mental Health, Alcohol Use and Illicit Substances
74 Each parent has experienced significant difficulties in relation to their mental health, alcohol use and in the case of the mother, illicit substances. Each parent claims V is at risk in the other parent’s care, primarily as a consequence of these matters.
The father
75 The father has a long history of difficulties with his mental health. When he was 16 years of age, he attempted to hang himself. When he was 18 years old, he was hospitalised with suicidal ideations and increased depressive symptoms.[14] At the time of his admission, he disclosed consuming 10 drinks per day.
[14] Exhibit 28 - The discharge summary from [Hospital A] Department of Psychiatric and Behavioural Science for the father dated 19 January 2012.
76 On 4 October 2015 the father was hospitalised, having fractured his hand after deliberately punching a wall.[15] He explained he was angry and upset at having lost his job.
[15] Exhibit 29 – The [Hospital B] summary for the father dated 4 October 2015.
77 On 17 November 2017 the father was hospitalised for suicidal ideations with concerns surrounding his depression and alcohol consumption, which was reported to be up to 20 standard drinks a day, 6 to 7 days a week. He was described as being a chronic risk of self-harm due to his personality structure.[16] The father was discharged and reported he was tempted to get the mother and V to return to Australia, then seek to retain V on the basis of alleged abuse. That did not reflect positively on the father.
[16] Exhibit 26 – The discharge summary from Hospital A Mental Health Service for the father admitted the 17 November 2017.
78 While hospitalised, the father reported that he:[17]
•Consumed six or more standard drinks on a daily basis.
•On an almost daily basis, was unable to stop drinking when he had started and had failed to do what was expected of him, as a result of his alcohol consumption.
•In the last year, on an almost daily basis, required a drink in the morning to get himself going.
[17] Exhibit 27 - The audit of the father from Hospital A dated 17 November 2017.
79 Dr M considered in her first report that the father had minimised his alcohol use and there were inconsistencies in his disclosures to the Court, compared to hospital admissions. She found the father then demonstrated significant elevations on the paranoia scale, with increased suspiciousness and hostility in his relations with others. She recommended the father attend upon a psychologist.
80 By the time of her updated report, the father had been seeing a clinical psychologist, [Dr T], since early 2019 and was continuing to do so. The appointments initially were every two to three weeks, but had reduced to every five to six weeks. The father reported he continued to take Melatonin, as prescribed, to assist him to sleep.
81 The father says he has not drunk alcohol since 22 May 2018 and he has not used illicit substances. The father’s test results obtained at the request of the ICL corroborate his evidence that he has abstained from using alcohol over an extended period of time.[18]
[18] Exhibit 21 - The Psychemedics hair urinalysis results for the father dated 10 January 2019. Exhibit 22 - The Clinipath results for the father dated 30 January 2019. Exhibit 9, tendered 20 November 2019 – Western Diagnostic Pathology results dated 8 November 2019, 10 May 2019 and 22 July 2019.
82 The father’s evidence is that he enjoys good mental health, which is supported by his family. Dr M says the father’s health is now well managed and he appears to have benefited from his engagement with Dr T. She did not consider more frequent attendances were required with Dr T and said the father’s openness with his family about his health and his willingness to seek assistance were positive protective factors. Dr M described the father’s ability to maintain sobriety, based on his disclosures and his clean test results, together with the support of his family and his engagement in various parenting courses, together with taking V on a regular basis to the child centre, were also positive indicators. These factors suggest the father is actively taking steps to manage his health and improve his parenting skills. He is seeking out advice and support to care for V. Both he and V are visible in the community and enjoy the support of the extended paternal family, who are aware of the father’s vulnerabilities.
83 I am not satisfied that V is at risk in her father’s care, on the basis that he maintains sobriety, he continues to attend on Dr T and manage his health. The father has agreed to injunctions in terms of abstaining from alcohol. I am satisfied that he has complied with those orders to date. He has agreed to continue to attend on Dr T.
The mother
84 The mother has also had longstanding difficulties with her health and use of alcohol and illicit substances. The mother denies that her alcohol use is problematic or that she experiences poor mental health. For the reasons that follow, the evidence supports a finding that the mother continues to experience significant difficulties in terms of her health and her alcohol use, and she has not been frank about these matters. The mother has attempted to deceive the Court, to withhold relevant evidence and taken steps to actively mislead the Court, which significantly undermines her credibility.
85 In 2013 the mother was hospitalised, she says with a kidney infection however the father suspects it was as a result of alcohol abuse. In February 2015 the mother was again hospitalised suffering a seizure.
86 On 18 March 2015 the mother was admitted to intensive care at [Hospital C] and was diagnosed with alcohol withdrawal syndrome.[19] The hospital reported she had been at home and suffered a seizure, causing her to fall and hit her head. While being transported to hospital by ambulance, she suffered a further seizure. The neurology department considered the seizures were caused by alcohol withdrawal and commenced the mother on Diazepam. The hospital recorded that:
•The mother had been consuming between 750 ml to 1 litre of spirits a day for years. She reported to have been drinking alcohol since her mid-teens and drinking most days, with significant periods of abstinence. She admitted to recently drinking a bottle of whiskey most days.[20]
•She had been drinking heavily and become dependent on alcohol.[21] She was reluctant to accept offers of support to assist her in abstaining from alcohol use.[22]
•The mother had cuts on both wrists and disclosed when she was 18 years of age she had attempted to kill herself. She reported around a month ago she cut her right wrist while intoxicated, which she described not as an attempt at self-harm, but a way of releasing tension.
[19] Exhibit 10, tendered 5 February 2019 - The Hospital C discharge summary for the mother dated 20 March 2015.
[20] Exhibit 9, tendered 5 February 2019 – The correspondence from Hospital C Drug and Alcohol Support Service dated 20 March 2015.
[21] Exhibit 7, tendered 5 February 2019– The correspondence from the Hospital C emergency department in relation to the mother dated 29 March 2015.
[22] Exhibit 10, tendered 5 February 2019 – The Hospital C discharge summary for the mother dated 20 March 2015
87 The mother discharged herself against medical advice. She was prescribed Diazepam. On 29 March 2015 the mother returned to hospital to have staples removed. The hospital provided her with contact details for alcohol support services.[23]
[23] Exhibit 8, tendered 5 February 2019 - The emergency admission notes from Hospital C dated 29 March 2015.
88 In August 2015 the mother was hospitalised following a kidney infection. The following month she was hospitalised and diagnosed with alcohol withdrawal seizure and urinary tract infection, with an additional diagnosis of alcohol dependence with deranged hepatic biochemistry.[24] On her admission, the mother was described as a chronic heavy alcohol user. She was prescribed Diazepam and Cephalexin.
[24] Exhibit 16 – The Hospital B emergency department notes for the mother dated 21 September 2015.
89 In May 2017 the father alleged the mother was using illicit substances and she dropped V when under the influence of alcohol. He contacted the maternal grandfather, who arranged for paramedics to treat the mother, who was then transferred to a rehabilitation centre. On around 20 May 2017 the mother again suffered an alcohol relapse.
90 In July 2017 the father told the maternal grandfather he discovered the mother was ordering illicit substances online. He claimed the maternal grandfather and an associate met with the father, with home drug test kits, and discussed how to get a sample from the mother.[25] The mother said the test results were negative.
[25] Affidavit of Mr Cleary filed 13 November 2018, paragraph 118.
91 On 15 June 2018 orders were made for the parties to undergo hair follicle testing, funded by Legal Aid. On 4 July 2018 the mother underwent a hair strand drug test. Psychemedics Corporation provided a report which confirmed excessive alcohol consumption with a reading of 64.4 pg/mg.[26] The mother’s reading was more than double the cut off reading for excessive alcohol consumption.
[26] Exhibit 6, tendered 5 February 2019 - The Psychemedics hair urinalysis drug test results for the mother collected the 4 July 2018.
92 On 11 July 2018 the mother attended Counselling Service A to commence counselling.[27]
[27] Exhibit 12, tendered 5 February 2019 - The Counselling Service A confidential file for the mother.
93 On 23 October 2018 the mother was hospitalised suffering from alcohol withdrawal and acute pyelonephritis. She arranged for the father to care for V. The hospital admission notes recorded the mother presented with recent heavy alcohol use, and previously heavy alcohol use having stopped drinking two days ago and thereafter suffering vomiting, jitters, weakness and fevers. The mother declined assistance from the hospital social worker. She was recommended to cease consuming alcohol.[28]
[28] Exhibit 11, tendered 5 February 2019 – The discharge summary from [Hospital D] dated 25 October 2018.
94 The mother asked the hospital to delete reference to her alcohol withdrawal on her medical records, because she was concerned it might “go against her in the Court”.[29]
[29] Exhibit 13, tendered 6 February 2019 – Hospital D inpatient progress note dated 24 October 2018.
95 On 30 January 2019 the mother underwent urine analysis testing which indicated decreased Creatine levels.[30] The test results did not detect any illicit substances or alcohol, but a further test was recommended, which the mother underwent on 31 January 2019. The second test did not detect any illicit substances or alcohol.[31]
[30] Exhibit 4, tendered 5 February 2019 - The Safework Laboratories urinary screen test for the Applicant dated 30 January 2019.
[31] Exhibit 5, tendered 5 February 2019 - The Safework Laboratories urinary screen test for the Applicant dated 31 January 2019.
96 The mother says in February 2019 she was prescribed medicinal cannabis oil to help manage her anxiety and stress. That prescription was not in evidence.
97 Dr M reported the mother’s history revealed she experienced significant difficulties in terms of both alcohol and illicit substance use. She recorded the mother had disclosed in 2015 drinking to excess including drinking a litre of spirit a day for years and using marijuana. The mother minimised her alcohol use, denied her use of illicit substances and reported various inconsistencies in her disclosed alcohol use.
98 Dr M said the mother tended to present herself in a consistently favourable light, reluctant to acknowledge her difficulties. She considered the mother may be unaware of areas where her functioning was less than optimal.[32]
[32] At paragraphs 40 to 43 of her first report.
99 Dr M expressed in her first report, based upon the materials provided, at paragraph 88:
… [Ms Belinsky’s] drinking which has included seizures is at the severe end of the alcohol abuse spectrum. Couple with this differing story she reports to different agencies which is common for people with alcohol problems. With [Mr Cleary], there is no doubt he drinks and may drink to excess but there is not the evidence to indicate the same level of problem as [Ms Belinsky] has but a common defence is he does it too rather than take responsibility for her own drinking.
100 The Expert stated at that time, the mother’s alcohol consumption presented an unacceptable risk, however she was not satisfied the father’s drinking met the same threshold. I agree. Dr M confirmed it would take up to two years to be confident that the mother had maintained sobriety, noting her recent relapse in July 2019.
101 Dr M said that the mother minimised her alcohol use, more so than the father, and described her as an unreliable reporter, citing the example of the day the mother failed to attend her appointment with the Expert, telling Dr M she was moving houses, when she had been hospitalised due to a kidney infection and alcohol withdrawal. The evidence supports that conclusion, which I share.
102 More concerning, is the mother’s ongoing denial and attempt to blame others, suggesting that the father, the Court proceedings and the ICL have contributed to her difficulties.
103 Dr M was asked to describe the impact of alcohol misuse upon parenting capacity and said:
Where there is a misuse of alcohol, children growing up into adulthood tend to develop a number of issues, such as self-esteem issues, trust issues, because quite often when there is a great deal of alcohol used by a parent, it’s usually hidden and there is a level of denial, so then they grow up to learn that they are unable then to trust others. There is also interpersonal relationship difficulties. There are going to be difficulties with schooling in terms of truancy, the amount of times that they attend school. So overall, cognitive, behavioural as well as developmentally.[33]
[33] Oral evidence of the Single Expert Witness on Friday 8 February 2019.
104 That cannot be in V’s best interests.
105 Dr M explained that abusing alcohol would adversely impact upon the mother’s ability to make good parenting decisions particularly when under the influence. It was likely to also impact upon her capacity to co-operate and communicate with the father. She opined that the mother’s prospects of maintaining abstinence would be increased if her support system had a thorough understanding of her difficulties.
106 The ICL put to Dr M the maternal grandfather’s evidence that he had absolute confidence in his daughter’s ability to make good decisions. She found that surprising and potentially damaging because it reinforces the mother’s problematic behaviour and indicates he lacks an understanding of the mother’s difficulties. Dr M raised similar concerns in relation to the evidence of the maternal grandmother who had no knowledge of the mother’s 2015 hospitalisation; she was aware of the 2018 hospitalisation, but did not understand it related to the mother’s alcohol use. Dr M confirmed the mother’s failure to disclose relevant information to her support network, meant they were unable to act protectively and support her.
107 The views of the maternal grandparents and their lack of appreciation of the mother’s difficulties, reduce their ability to be protective of V. Dr M recommended the grandparents engage in the mother’s psychological intervention, to better understand her triggers, stresses and vulnerabilities.
108 I am satisfied V is at risk of harm and neglect from the mother, for the following reasons:
•The mother has lied and sought to deceive the Court about her alcohol use. This significantly undermines her credibility. It has contributed to the father’s lack of trust in her. The mother’s alcohol consumption poses an escalated risk because of her ongoing attitude of minimising, justifying and not being honest with herself and others about her difficulties. I accept the Expert’s evidence that the first step towards recovery is acknowledging and accepting the extent of an addiction, which the mother has not yet done.
•The mother continues to deny having difficulties with her health and alcohol use. As a consequence, she has failed to adequately take steps to satisfactorily address these matters. I accept the Expert’s view that the mother appears to have been dependent on alcohol as a coping mechanism, for a significant period of time. Her hospitalisations are indicative of serious abuse of alcohol.
•The mother has experienced poor mental health and struggled with anxiety and depression. Her health deteriorated after V was removed from her care. The mother did not deny her attempted suicide on her hospital admission, stating that she could not live without her daughter. The Expert considered and I accept V not living with the mother, increased the mother’s mental health vulnerabilities.
•The mother has only recently been discharged from hospital, after an extended admission. She has not yet embarked on the recommended treatment. In the past, the mother has failed to comply with the advice of treating medical practitioners. The mother’s difficulties with depression and anxiety are long standing and pervasive. These difficulties are exacerbated in circumstances where the mother has not reached out to her family and professionals for support at times of crisis.
•There is no evidence from any treating medical practitioner as to the mother’s state of current health. She continues to be prescribed medication but I am unable to conclude what the medication is for.
•V is at risk of neglect in her mother’s care while her health and alcohol dependence is not successfully managed. Specifically I accept the Expert’s evidence that the mother’s capacity to meet V’s physical and emotional needs are compromised, which places V at risk of harm. The mother is experiencing high levels of anxiety, stress and depression, which manifested in her attempted suicide. The mother’s ability to regulate her emotions and make effective decisions at this time are in question. The mother’s decision to leave Australia immediately after the trial and not spend time with her daughter, may indicate the mother’s condition has not stabilised and/or that she is not coping.
•While the mother continues to engage with Ms F, I had no evidence about Ms F’s qualifications or experience nor the matters which the treatment was purportedly addressing. Accordingly I am unable to conclude how effective the treatment is, noting the additional concerns raised by Dr M about the mother’s possible shame and barriers to treatment with Ms F.
•The mother has not been full and frank with her family or friends about her difficulties. The maternal grandfather only learnt shortly prior to trial that the mother had fabricated her test results. The mother did not tell her father of her suicide attempt and said she took relaxation tablets as a result of V being removed, through a conspiracy concocted between the father and the ICL. Mr Z, the mother’s friend, was unaware of any of the mother’s health or alcohol difficulties and did not know of her recent hospitalisation. He explained that in Russia, people do not commonly discuss their personal problems. The mother has not been frank with Mr K about her recent hospitalisation and it appears their relationship is now strained. The lack of a support network, aware and informed of the mother’s vulnerabilities, adds to the risks to V in her mother’s care.
Flight Risk
109 The father and ICL raised concerns that V is at risk of being removed from Australia by the mother. The mother is a Russian citizen and at present, is unable to reside in Australia. After the mother obtained a recovery order, she attempted to remove V from Australia, which was only prevented as a result of V being placed on the Watchlist. Russia is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.
110 Given the mother’s attempt to remove V from Australia without the father’s consent or an order of the Court, the mother’s admission to having forged documents which she has relied upon and her willingness to deceive the Court, I consider the father’s concerns are well-founded.
111 In my view, there is an unacceptable risk that V may be removed from Australia by her mother. I accept Dr M’s evidence that if V were to be removed from her father’s care, that would be traumatic for V.
WHAT IS THE CAPACITY OF THE MOTHER AND FATHER TO PROVIDE FOR V’S EMOTIONAL AND PSYCHOLOGICAL NEEDS?
112 I am satisfied the father is able to provide for V’s needs. She has been living with him since 30 July 2019 and he has been attending to her needs. He has actively participated in a number of courses to improve his parenting.[34] He has attended a child-development centre on a consistent and regular basis to obtain assistance with V’s speech and general development. He has maintained sobriety and sought ongoing assistance from a psychologist to manage his mental health. He has the support of his family, with whom he has been frank about his difficulties. The father has demonstrated a willingness to seek out assistance from his mother, brother and sister-in-law.
[34] In May 2019 the father has completed a number of courses including a Protective Behaviours workshop, the Tuning into Kids course and Food Sensation workshop.
113 While the mother was critical of the father’s level of education and work history, I do not consider those criticisms were warranted. The mother is highly educated and presented as intelligent and articulate. The father left school at year 10 and has since undertaken a number of courses. He is studying in the hope of gaining tertiary admission and then partaking in further studies. He has held the same job since 2017, but wants to work in the information technology field in the future. He has been unable to do so given his care of V, and V’s inability to attend day-care. The father presented as intelligent, articulate and devoted to V. He was able to express what he had learnt from the courses he undertook, the books he had read and the assistance from his family and Dr T.
114 The observations of the Expert support a finding that V’s needs are currently being attended to and she is happy, safe and secure in her father’s care.
115 There is no evidence to suggest that the father is using alcohol. He is continuing to attend upon a psychologist to assist in managing his health. In my view, it is important that he continues to do so. The paternal grandmother, brother and sister-in-law all confirm that the father is currently enjoying good, stable health and he is appropriately attending to V’s needs. Each of them deposed and I accept, that they would immediately raise with the father if they had any concerns about his health or his ability to care for V. This provides an important protection for V.
116 I am not satisfied that the mother is currently capable of providing for V’s needs, given her health and alcohol difficulties. My concerns are amplified in circumstances where the mother denies her difficulties and where she has not been full and frank with her family or friends. The mother did not present with insight into her difficulties and as a consequence, she has not yet taken sufficient steps to address these concerns.
117 I have no doubt that the mother loves V deeply and wants the best for her. I consider if the mother is able to stabilise her mental health and maintain sobriety, she has much to offer to her daughter. Until such time as the mother is able to adequately address these issues, I am not satisfied that she has the capacity to provide for V.
WHAT IS THE CAPACITY OF EACH PARENT TO PROMOTE HER RELATIONSHIP WITH THE OTHER PARENT?
118 Dr M initially raised concerns that the father, while not discouraging V’s relationship with her mother, was more focussed on his own relationship. By the updated report Dr M did not consider the father would fail to support the relationship.
119 The father’s evidence is that he has attempted to arrange regular electronic contact between the mother and V, which the mother has not reciprocated. He has complied with orders of the Court. I am confident, having heard his evidence, that he will comply with orders moving forward.
120 The mother says she will promote and facilitate V’s relationship with the father. I have concerns about her willingness to do so, in circumstances where she has not complied with orders, she has admitted to lying to the Court and forging documents, and where she attempted to remove V from Australia. I accept the father’s concern that should V live with the mother in Russia, there is a risk that he will not have any contact with V, regardless of any orders the Court makes.
TO WHAT EXTENT HAS EACH PARENT TAKEN OPPORTUNITIES TO SPEND TIME, COMMUNICATE AND PARTICIPATE IN DECISIONS FOR V?
121 The mother made most of the decisions about long-term issues for V from separation until she left Australia. In that time the father has participated to the extent that he has been able to. Both parties have spent time and communicated with V. Since 30 July 2019 the father has made decisions for V’s care.
122 The father sought the mother’s consent to have V vaccinated, which she refused until mid-way through the trial.
WHAT IS THE LIKELY EFFECT OF ANY CHANGES TO V’S CIRCUMSTANCES INCLUDING ANY SEPARATION FROM EITHER PARENT OR ANY OTHER PERSON?
123 At the time of trial in November 2019, V had been living with her father for three months. Dr M observed the father and V to have a good relationship and close bond. The father and his family say V is happy and content, enjoying play-group and is visible in the community and with her extended paternal family. The Expert observed the father to be calm and patient with V and parenting her appropriately. Dr M says and I accept that to remove V from her father’s care would cause significant disruption and instability. That cannot be in her best interests.
124 I am satisfied that to place V in her mother’s care would be detrimental given that she is currently settled, safe and secure in her father’s care. V has experienced significant disruptions in her life to date. While I accept V’s removal from her mother’s care was traumatic for the mother and her living in Australia was difficult, financially, physically and emotionally, the mother’s decision to leave without notice, meant V experienced a loss of a relationship with her mother without any opportunity to either explain or prepare V. I accept the Expert’s evidence that V may, in the future, experience difficulties in terms of a sense of abandonment.
125 I consider that V is at risk of abuse and neglect in her mother’s care for the reasons already identified. There is a very real risk that if V lives with her mother in Russia, that the mother will not obtain the necessary assistance required to manage her health and alcohol use. There is also a risk that the mother will not comply with any orders to require V to maintain contact with the father. The mother presently lacks awareness about the impact her health and alcohol use has upon her parenting capacity. The mother’s family and friends lack an appreciation of the extent of the mother’s difficulties and accordingly, have not been able to support the mother in obtaining the assistance she requires.
126 I accept the Expert’s evidence that given the risks and in light of V’s age, her relationship with her mother is best maintained through direct contact. Such contact is only possible when the mother visits Australia. However, electronic contact provides an important mechanism to maintain their relationship, despite it not being not ideal. The mother’s financial circumstances are such that I expect she will be able to travel to Australia at least once a year, on a tourist visa, for up to two months.
WHAT ARE THE PRACTICAL DIFFICULTIES AND EXPENSE WITH SPENDING TIME WITH EACH PARENT?
127 There is a practical difficulty and expense which arises by reason of distance, travel and cost of travel. The father and ICL propose V remain in Australia and spend time with the mother on a supervised basis, when she comes. The mother will therefore incur the costs of travel to Australia, accommodation and other expenses while she visits, in addition to the costs of supervision. The mother will also require visas. It was unclear the extent to which that may pose a difficulty. The mother said she was currently on a tourist visa that allowed her to remain in Australia for two months. She was unclear how many such visas she may be eligible to obtain in a 12 month period.
128 The father proposes V’s time be supervised with [Child Contact Service A]. The supervision costs $180 for a two hour visit, in addition to other charges.[35] The mother says she cannot afford those costs. However, the mother submitted if V were to live with her, she would be working and would pay the costs of the father to travel to Russian City A twice each year, and for V to attend the best Montessori school. In her proposed orders, she agreed to pay for the costs of V and/or the father to travel to spend time together. The maternal grandfather was not prepared to advise if he would assist the mother to meet the supervision costs. The father says he currently is unable to contribute to the costs of supervised visits.
[35] Exhibit 12, tendered 21 November 2019 - Child Contact Service A fee structure.
129 The mother proposes that V relocate to Russia and spend time with the father at a mid-way point, such as Singapore. The father will therefore incur costs of travel, accommodation and other expenses while he visits. The mother would also incur costs if the contact occurred in another country, such as Singapore.
130 The father has concerns about V spending time with the mother outside of Australia as he considers the mother may seek to flee with V. His concerns are substantiated by the mother’s actions in attempting to remove V from Australia.
131 Neither party led any evidence about the costs of airfares between Australia and Russia. The father has a modest income only. The mother currently does not work but has indicated she can do so. She also has the benefit of rental income from a property she owns in Russian City A. The mother appears to have the benefit of financial assistance from her father.
CONCLUSIONS
132 Having considered carefully all of the evidence in the context of the primary and additional considerations, I have come to the following conclusions. In this case I am satisfied the presumption does not apply, as there are reasonable grounds to believe that both parties have engaged in acts of family violence.
133 The parties agree an order for equal shared parental responsibility is not in V’s best interests or reasonably practicable. V is fortunate to have two parents who love her, but they struggle to communicate and there is no trust between them.
134 I have concluded V should remain in her father’s care and will order that he have sole parental responsibility, on the basis that he is to confer and obtain the mother’s input prior to making any major decision and inform the mother of his decisions. I am satisfied these arrangements are in V’s best interests as it will ensure that the mother continues to have input into major decisions for V.
135 I am satisfied it is in V’s best interests and reasonably practical that she continue to live with the father for the following reasons:
•V is safe, secure and happy in her father’s care and he is appropriately attending to her needs.
•The father has the support of his mother and extended family. The paternal grandmother in particular, provides physical, financial and emotional support to the father, which is in V’s best interests. The father benefits from the ongoing assistance of his mother.
•V is visible in the community. She is attending play group and now that she will be vaccinated, she will be enrolled to attend day-care. Apart from the mother’s criticisms of the father, there was no evidence to support a finding that he was neglecting V’s needs.
•V has had significant disruptions in her living arrangements in her short life. I am not satisfied it is appropriate to disrupt again V’s progress, given that she is doing well in her father’s care.
•V is safe in her father’s care. He has maintained sobriety for an extended period. He continues to engage with a clinical psychologist to manage his mental health. He has support from his family, which I consider is an important protective mechanism, given the paternal family are aware of the father’s previous difficulties, where he has been open and frank with them and they have each indicated they would not hesitate to intervene if they had concerns about the father’s capacity to care for V.
•I am satisfied the father will comply with orders for V to spend time and have contact with the mother, given his conduct to date.
136 After careful consideration, I am satisfied that V’s time with the mother should be in terms proposed by the ICL, namely that if the mother continues to live outside of Australia, it should be supervised given the flight risks and the concerns about the risks to V in her mother’s care. If the mother is able to live in Australia, then V’s time with her mother should be supervised for 12 months, as proposed by the ICL and supported by Dr M, on the basis the mother undergoes three monthly hair testing, engages with a mental health practitioner and provides evidence to the father. If the maternal grandparents accompany the mother, they should be able to attend supervised visits with the mother, subject to the approval of the supervision service. It is in V’s best interests to maintain a relationship with her extended maternal family and such visits provide an opportunity to do so. It is also appropriate for the mother and her family to provide gifts to V. There was nothing to suggest that any gifts to date had been inappropriate. I consider gifts are another means through which V can maintain those relationships. I consider V’s relationship with her mother can be maintained through regular electronic communication and face to face visits when she is in Perth.
137 Dr M consented to her reports being provided to each parent’s treating medical practitioners and I will make orders in those terms. It is in V’s best interests for her father to maintain his health, I will require him to continue to attend on Dr T, or such other clinical psychologist as he selects, on terms and conditions recommended by them.
138 The Expert’s evidence and the discharge summary make it plain the mother has been recommended to obtain psychiatric and psychological assistance. I consider the mother would benefit from professional assistance to address her long-standing difficulties with alcohol. In my view, they are decisions for the mother. I will not mandate that the mother do so but her time with V will remain supervised, even if the mother lives in Australia, until she obtains professional assistance. It is in V’s best interests for her mother to enjoy stable health and actively take steps to manage her difficulties and until that time, I cannot be satisfied that V is safe in her care. I do not consider that Ms F is best placed to provide that assistance, given her relationship with the mother’s family and the cultural barriers which have been identified which may be impacting on the mother successfully seeking treatment.
139 I propose, subject to hearing from the parties, to give the mother leave to have these reasons translated and provided to each of her parents. The maternal grandparents, armed with disclosure about these matters, will be better placed to support the mother into the future.
140 The mother would benefit from completing a parenting course as recommended by Dr M and I will make orders that she do so. In my view that would benefit V.
141 The mother will need to undertake testing and supervision, which will impose an additional expense to be met by her. The mother has been able to find funds with her family’s assistance to date. In addition, the mother owns a property which she rents; she can work and generate a significant income. I am satisfied that she can meet these costs. I accept the costs of supervision through Child Contact Service A are higher than through other government agencies, so I intend to provide for the parties to attend intake appointments with alternate agencies, if that can provide supervised visits at reduced cost.
142 On the basis the mother lives in Australia, she provides 12 months of clean hair test results, including for alcohol and the provision of a report from her treating medical practitioner, then her time with V will move to be unsupervised, day time only visits.
143 I will make orders as sought by the ICL in terms of the parties’ ongoing communications. I am satisfied orders should be made to require the father to take V to the Russian Orthodox Church on special occasions, given V has previously attended with her parents. I consider that is an important means through which V can maintain a connection to her Russian heritage, if the mother is not in Australia.
144 I will make orders to restrain the mother removing V from her father’s care and the country, given my findings. As a result of those concerns, I am not satisfied that the mother’s contact with V should occur outside of Australia.
145 While the father sought an order to change V’s name, I outlined at the commencement of the trial the lack of any evidence to support such an order being in V’s best interest. I decline to make the order.
146 The mother sought a number of other orders, which I am not satisfied are in V’s best interests. I decline to make those orders.
147 The father sought an order that he be excused from disclosing V’s residential address. This was not the subject of any detailed evidence nor any submissions. On the basis that the mother is restrained from removing V from the father’s care and V remains on the Watchlist, I do not consider there is a risk to V in her residential address being disclosed. I decline to make the order as sought.
148 SUBJECT TO HEARING FROM THE PARTIES as to the form of the orders only, I propose to pronounce orders as follows:
1.All previous parenting orders are discharged.
2.The Respondent have sole parental responsibility for the child, [V], born [in] 2017, (“the child”) provided that prior to the Father making any decision as it relates to a major long term issue concerning the Child he shall:
(a)Notify the Applicant by email of the decision he intends to make and the reasons for the decision;
(b)Seek the Applicant’s comments on the decision he intends to make;
(c)Take into account any comments the Applicant makes about the decision he intends to make, provided such comment is received, by email, from the Applicant within 5 days of notice being given to her; and
(d)Notify the Applicant by email of the decision he has made.
3.The child live with the Respondent in Perth, Western Australia.
Spending Time Arrangements
In the event the Mother Resides outside of Australia
4.The Applicant spend time with the child supervised by a supervision agency, for such days and duration each day as agreed between the parties upon the Applicant providing at least 30 days’ notice that she will be travelling to Australia, or otherwise as agreed between the parties in writing, with the costs of any visits to be met by the Applicant.
5.Specifically, the child spend time with the Applicant, such time spent to be supervised by either [Child Contact Service A], Relationships Australia, Anglicare or Centrecare ("the Service Provider").
6.Subject to the availability of the Service Provider, wait lists and the family being assessed as suitable for the provision of its services by the Service Provider, the said child spend time with the Applicant for 2 hours on each visit, at such frequency as can be accommodated by the Service Provider.
7.Each party shall:
(a)telephone the Service Provider as soon as practicable to arrange an appointment for an intake interview;
(b)attend the intake interview at the arranged time;
(c)attend any appointments arranged by the Service Provider;
(d)comply with the Rules of the Service Provider;
(e)comply with all reasonable requests or directions of the staff of the Service Provider; and
(f)provide a copy of this order to the Service Provider.
8.The costs of the:
(a)intake interview shall be borne by the Applicant and Respondent;
(b)supervision shall be borne by the Applicant; and
9.Subject to the consent of the Service Provider, the maternal grandparents have permission to attend supervised visits with the Applicant.
In the event the Mother resides in Australia
12 Months
10.For the first 12 months, the Applicant spend time on a supervised basis for 2 hours per fortnight, with a Service Provider, with all costs to be met by the Applicant.
11.During the above 12 month period, the Applicant provide Hair Strand Testing for a three month period, at three month intervals, with the test to be inclusive of alcohol.
12.The costs of above mentioned testing to be met by the Applicant.
13.The Applicant authorise the testing service to release any completed tests required for these orders directly to the Respondent.
12 months to 15 months
14.Upon the Applicant providing to the Respondent;
(a)Evidence of stable accommodation, and
(b)12 months of clean Hair Strand Test results, and
(c)A report from her treating practitioner (not [Ms F]) providing details as to her attendance, diagnosis and prognosis, with such report to confirm the practitioner’s qualifications and that they have read the reports of the Single Expert Witness, and
(d)The Applicant has spent time with the child consistently pursuant to the orders at paragraph 10;
the Applicant thereafter spend time with the child from 10am to 4pm on Saturday or Sunday of each week.
15 months to 21 months
15.The Applicant thereafter spend time with the child for two mid week visits of up to three hours (including after school if attending), and one weekend visit of 10am to 4pm.
Thereafter
16.Thereafter, upon the Applicant providing a three month Hair Strand Test inclusive of alcohol, she spend time with the child from 9am Saturday until 5pm Sunday each alternate weekend, and such other time as agreed between the parties.
Communication Between the Applicant Mother and the Child
17.The Respondent facilitate Skype/telephone/FaceTime/WhatsApp contact between the Child and the Applicant as follows (all times are Australian Western Standard Time – AWST) with the Applicant to initiate all calls and the Respondent to answer all calls:
(a)Every Tuesday, Thursday and Sunday between 6.00pm and 6:30pm for up to a period of 30 minutes, unless otherwise agreed between the parties;
(b)6:00pm on Russian Orthodox Christmas Day (7 January);
(c)6:00pm on the child’s birthday (27 February);
(d)6:00pm on Mother’s Day (second Sunday of May); and
(e)6:00pm on the Applicant’s birthday (15 December).
18.The Applicant be at liberty to speak in Russian with the Child during the above contact, and the Respondent be at liberty to direct that the conversation take place in English in the event he is not comfortable, and have liberty to terminate the call in the event the Applicant does not revert to English.
19.If the child wishes to have Facetime or telephone communications with the Applicant, the Respondent will do all things necessary to facilitate the requested communications.
20.The Applicant and her family be at liberty to send the child letters and gifts to an address nominated by the Respondent within the following 7 days. In the event of any change to the nominated address, the Respondent is to advise the Applicant within 7 days of such change.
Communication Between the Parents
21.The Applicant and Respondent create and maintain an account with an agreed communication App (“the App”) available to each of the parties, with the parties to share equally in any costs associated.
22.For the purposes of communication, both parties communicate only through the App or email unless considered an emergency.
23.The Respondent populate and update on an ongoing basis, the App or relevant database with all relevant information about the child including but not limited to:
(a)General Family Vitals;
(b)Daycare and school information;
(c)Emergency Contact Information;
(d)Medical and Health Information; and
(e)Photographs of the child, to be uploaded to the App not less than once each month by the Respondent Father.
24.Each party will notify the other parent of any change of email, telephone or mobile telephone number at least 7 days in advance, if possible, and within 48 hours of any change if advance notice is not possible.
25.By consent, the Respondent have permission to immunise the child, including any outstanding immunisations and to provide to the Applicant copies of the child’s immunisation records.
26.Each parent shall as soon as practicable notify the other parent of any accident or emergency or significant illness involving the child which involves medical treatment or hospitalisation while the child is in the care and control of that parent and that parent shall also advise the other parent of:
(a)the name and contact details of any treating medical practitioner together with the details of any recommended treatment; and
(b)the name of the hospital in the case of an admission to hospital.
The Child’s Russian Heritage
27.In the event the Applicant does not reside in Australia, the Respondent do all things necessary to ensure the child maintains a connection with her Russian culture including but not limited to facilitating the child’s attendance and participation on the following occasions at the child’s Russian Orthodox Church namely, [Church A], [Street Address A, Suburb A, WA], on the following dates:
(a)Russian Orthodox Christmas Day (7 January);
(b)Angel Day (4 August);
(c)Orthodox Easter (1st Sunday April); and
(d)New Year’s Day (31 December).
Injunctions
28.The Applicant be restrained by injunction and an injunction be granted restraining her from removing the Child from the Respondent’s care save and except as provided for in the orders.
29.By consent, on a without admission basis as to need, the Applicant and Respondent be restrained by injunction and injunctions are granted restraining the parties from the following:
(a)Consuming alcohol or illicit substances while the child is in their respective care;
(b)Communicating with each other in a hostile or aggressive manner;
(c)Denigrating the other parent or their extended family members within the child’s presence or hearing or from allowing any other person to do so;
(d)Denigrating or harassing the other parent by any electronic means, including by using the Internet and any other social network application (such as “Facebook”) to depict or refer in any offensive manner to the other parent;
(e)Attending at or entering upon the other parent’s residential address, or having a third party or agent attend upon the address without the other parent’s knowledge and consent; and
(f)Initiating discussions with the child about her wishes with respect to living arrangements or the time she can spend with each parent or from allowing any other person to do so.
Watch List and Travel
30.The Applicant [MS BELINSKY] born [in] 1983, and her servants and/or agents be and are hereby restrained from removing or attempting to remove, or causing or permitting the removal of the said child, [V], born [in] 2017, (also known on her Russian passport as [V]) from the Commonwealth of Australia until the child attains the age of 18.
31.Notwithstanding the previous clause, the Respondent [MR CLEARY] born [in] 1991, be the ONLY person at liberty to remove the child [V], born [in] 2017, from the Commonwealth of Australia.
32.The Australian Federal Police give effect to this order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child's name on the Watchlist for the said period, until the child attains 18 years of age, and with the Respondent Father to travel with a copy of these orders to illustrate to the Australian Federal Police of his liberty to travel with the child.
33.The Respondent hold the child’s Australian passport and be at liberty to renew the passport without the requirement of the signature or permission of the Applicant.
34.Subject to any other requirements of the Department of Foreign Affairs and Trade, a passport be issued to the said child to enable her to leave the Commonwealth of Australia for the purpose of holidays with the Respondent only.
35.The costs associated with the issue of a passport for the child referred to in the preceding orders herein be met by the Respondent.
Parties’ Mental Health and Wellbeing
36.The Respondent continue to attend upon [Dr T] or such other clinical psychologist and comply with any recommendations regarding frequency of attendance as may be recommended form time to time.
37.The Applicant enrol in, compete and provide to the Respondent Father proof of completion of an age appropriate parenting course in Russia or Australia.
Procedural Orders
38.The Applicant and Respondent be at liberty to provide a copy of the sealed orders to any school or educational institution at which the child attends and to any of the child’s medical treatment providers.
39.The Applicant and Respondent have leave of the Court to provide a copy of each of [Dr M]’s Single Expert Witness reports to their treating health practitioners.
40.Subject to hearing from the parties, the Applicant have leave to provide a translated copy of these reasons and orders to each of her parents.
41.The Applicant and Respondent forthwith do all things necessary and sign all documents required to give full and immediate effect to these final parenting orders.
42.The Independent Children’s Lawyer be discharged.
43.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 the date hereof.
44.In relation to material tendered as an exhibit into evidence in these proceedings, on the expiration of 42 days from the date hereof, all material tendered as an exhibit into evidence, save and except for material produced pursuant to subpoena, be destroyed by the Court without notice to the parties
45.In the event of an appeal being lodged prior to the expiration period of 42 days, paragraphs 43 and 44 above do not apply.
46.The Application and Response be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
CD
Secretary3 DECEMBER 2019
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