CAUSEY and MCCAIG
[2017] FCWA 154
•14 NOVEMBER 2017
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: CAUSEY and MCCAIG [2017] FCWA 154
CORAM: DUNCANSON J
HEARD: 18, 19, 20, 21 SEPTEMBER 2017
DELIVERED : 14 NOVEMBER 2017
FILE NO/S: PTW 4533 of 2014
BETWEEN: MR CAUSEY
Applicant
AND
MS MCCAIG
RespondentAND
MRS CAUSEY
Intervener
Catchwords:
CHILDREN - Where mother suffered from alcoholism - Where child cared for by paternal grandmother in Perth when mother moved to [Sydney] for rehabilitation - Mother now recovered - Child's views - Child to live with mother in [Sydney]
Legislation:
Family Law Act 1975 (Cth) s 60B, s 60CA, s 60CC, s 61DA
Category: Reportable
Representation:
Counsel:
Applicant: Self-Represented Litigant
Respondent: Mr S Jones
Intervener: Ms R Oakley
Independent Children's Lawyer : Mr W Dawkins
Solicitors:
Applicant: Self-Represented Litigant
Respondent: HBR Family Lawyers
Intervener: Bannerman Solicitors
Independent Children's Lawyer : Wayne Dawkins Lawyers
Case(s) referred to in judgment(s):
Nil
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
1[L] is seven years of age. Currently L lives with [Mrs Causey] her paternal grandmother in Perth. L spends time with her father, [Mr Causey] who also lives in Perth. [Ms McCaig], L's mother lives in [Sydney] and L spends time with her both in Perth and in Sydney. L has lived with the paternal grandmother since 2014. The paternal grandmother wants the mother to move to Perth so that L can live in a shared arrangement with her parents and spend time with her. The father supports the paternal grandmother's position.
2In 2014 the mother experienced a number of personal difficulties including an addiction to alcohol. She was unable to care for L on her own and the paternal grandmother was significantly involved in her care. The mother moved to Sydney in 2015 for rehabilitation. L remained with the paternal grandmother in Perth.
3The mother's position is that she has successfully received treatment for her alcoholism and she is now rehabilitated. She wants L to move to Sydney to live with her and her fiancé, [Mr A]. She says she has the support of Mr A and his family and she is now able to care for L.
4The paternal grandmother and the father are not persuaded that the mother is rehabilitated and are concerned that there remains a risk to L's welfare in the care of the mother. The mother will not move to Perth. To do so could jeopardise her recovery. The father will not move to Sydney.
5It is necessary to determine L's living arrangements. Central to that determination is an assessment of any risk posed to her in the care of the mother. It is not suggested that L is at risk in the care of the father or the paternal grandmother.
THE ORDERS SOUGHT BY THE PATERNAL GRANDMOTHER
6The orders sought by the paternal grandmother are contained within a minute of proposed final orders in her papers for the judge filed 11 September 2017. The paternal grandmother proposes that she, the father and the mother have equal shared parental responsibility for L. In the event that the mother lives in Perth (within about 10 kilometres of L's school) and upon certain conditions primarily relating to the mother's alcohol addiction, then L should live with the mother and the father in a shared care arrangement. That arrangement would take account of the father's roster as a fly-in/fly-out worker. In that event the paternal grandmother wishes to spend regular time with L during the time she lives with the mother.
7The paternal grandmother proposes that in the event the mother lives outside of the Perth metropolitan area, including interstate, then L should live with the paternal grandmother and live with the father in the week he is in Perth. L would spend time with the mother during school holidays and special occasions either in Perth or interstate.
8The paternal grandmother makes various proposals for travel arrangements, electronic communication, a non-denigration order, the provision of information and overseas travel.
THE ORDERS SOUGHT BY THE MOTHER
9The orders sought by the mother are contained within a minute of proposed final orders in her papers for the judge filed 14 September 2017. The mother seeks an order that she have sole parental responsibility for L. She proposes that L live with her and she be at liberty to relocate her to Sydney. She proposes that in the event the father relocates to Sydney, L would spend alternate weekends with him.
10In the event that L lives with the mother in Sydney and the father remains in Perth, L would spend time with the father and the paternal grandmother during school holidays.
11The mother also makes orders for electronic communication, travel, including overseas travel and passport.
12The mother proposes additional orders including a non-denigration order. She seeks an order that neither party drink alcohol nor consume illicit substances while L is in their care. She also seeks an order that the father undergo regular drug and alcohol testing.
13In closing the mother's counsel proposed that a number of protective measures be ordered as set out below.
THE ORDERS SOUGHT BY THE FATHER
14The orders sought by the father are contained within a minute of proposed final orders filed 7 February 2017. In evidence, he said if L remains in Perth and the mother also lives in Perth, L would live with the mother and with him. There may need to be some transition and L would remain with the paternal grandmother initially, but after a short time she would move to live with the mother and with him for part of the week that he is home, possibly Friday to Monday. If L is to live in Sydney the father wants to spend time with her in school holidays.
THE INDEPENDENT CHILDREN'S LAWYER'S POSITION
15L's interests were represented by Mr Dawkins. At the conclusion of the evidence he said he supported Option 1 of the report of the Single Expert Witness, [Ms H] namely that L should live with the mother in Sydney after the conclusion of the 2017 school year.
FAMILY BACKGROUND
16The paternal grandmother was born [in] 1957. She is 59 years of age. The mother was born [in] 1980. She is 36 years of age. The father was born [in] 1982 and he is 35 years of age.
17The paternal grandmother is in employment as [a bookkeeper]. The mother is employed in [outreach and retail]. The father is a [mechanic].
18The parties were married [in] 2006. L was born [in] 2010 in [Country A]. The parties separated in 2010 and were divorced [in] 2015.
19The paternal grandmother lives in Perth as do members of her family including her sister and her mother. The mother lives in Sydney. She is engaged to Mr A, with whom she commenced a relationship in July 2015. The mother lives at the home of Mr A's parents.
20The father lives in Suburb B. He works fly-in/fly-out. He recently married [Ms C] in [Country D].
SHORT HISTORY
21The mother was sexually abused as a child. She suffered an eating disorder. After their marriage the parties lived in [Melbourne] for about two years. They lived in Country A for about a year after that, before moving to [Country B] where the paternal grandmother was living. The parties' relationship was a difficult one, the mother says because of the father's behaviour. She says the father was a heavy drinker, a substance abuser and a gambler. Both parties drank alcohol to excess and used illicit substances.
22The mother attended rehabilitation for her eating disorder in [Country C].
23In about August 2009 the mother moved to Country A to live with her parents for the birth of L. The father remained in Australia during which time he had a relationship with another woman. He subsequently moved to Country A and stayed with the mother and her family. Shortly after L's birth the mother asked him to leave her family home. He remained in Country A until about June 2011 when he returned to Australia. The mother remained in Country A. Initially she lived with her parents and then she lived independently of them.
24While in Country A the mother's drinking worsened and she became addicted to alcohol.
25In about October 2013 the mother brought L to Perth. In January 2014 she moved into a shared accommodation in [Suburb D] with the paternal grandmother. L was enrolled into Suburb D Primary School.
26The mother deposed that by reason of the stress of her mother's death, her father's cancer diagnosis in February 2013 and the lack of support from the father, her health deteriorated. She drank to excess. She was addicted to alcohol. She was supported by the paternal grandmother, who cared for L.
27On 29 July 2014 the mother was sexually assaulted while intoxicated. The incident was of such severity that she was admitted to [Hospital A]. She was considerably distressed by it.
28The mother's health deteriorated and her alcohol dependency worsened.
29The mother's behaviour also deteriorated. She drank excessively and consumed illicit substances. She was too ill to attend L's fourth birthday.
30When drunk the mother associated with strange men whom she brought to her home. At times she went missing. The police were called. She tried to cut her wrists in the presence of L and other children.
31The mother refused rehabilitation and took little interest in L.
32The mother had several admissions to hospital. She refused to take medication.
33At this time the paternal grandmother primarily cared for L and protected her from the mother's behaviour.
34The father commenced these proceedings on 20 August 2014. On that day it was ordered that the father and the mother were to ensure that L remained overnight at the Suburb D home.
35In late 2014 Mr A visited the mother in Perth and persuaded her to have treatment in [New South Wales].
36The mother moved to Sydney where she received treatment at [Hospital B] detox unit and from there she was transferred to a treatment centre.
37L remained in Perth with the paternal grandmother.
38On an occasion in February 2015 the mother drank to excess and blacked out, the police were called and during the incident she bit a police officer. She was given probation for a period of 18 months and no conviction was recorded. The mother said it was the anniversary of her mother's death.
39The mother and Mr A visited L in Perth in mid-2015. L has spent time with the mother in Perth and in Sydney since then during school holidays and at other times.
40The mother continued her rehabilitation in Sydney as set out below.
41She last consumed alcohol mid-2015.
42L continues to live with the paternal grandmother. She spends time with the father in accordance with his roster for a number of days every third week.
43On 21 June 2016 Ms H was appointed single expert witness. Ms H provided two reports, the first dated 24 July 2016 and the second dated 12 September 2017.
THE PARTIES AND THEIR WITNESSES
The paternal grandmother
44The paternal grandmother is devoted to L. She has been her primary carer since early-2015 when the mother moved to New South Wales.
45She has received assistance from her daughter and her sister and some assistance from the father.
46The paternal grandmother said she did not feel there was irreparable conflict between her and the mother but difficulties had arisen leading up to the trial.
47The paternal grandmother was very distressed when she described the impact on L of the mother allowing strange men into the home, of L seeing the mother drunk and in particular when she described L's reaction to the mother going to New South Wales. The paternal grandmother was moved to tears when she described how L cried when she wanted her mother and could not understand that the mother was not returning. The paternal grandmother said the child saw many horrible things in 2014. She was frightened and was hurt.
48The paternal grandmother gave mostly truthful evidence. An aspect of her evidence which was less reliable was with respect to the father. The paternal grandmother was supportive of the father. She minimised his behaviour. At times when asked about negative aspects of the father's behaviour she was vague. She said she could not remember the father gambling. She said she had not discussed his gambling or his negative attitude towards the mother with him.
49The paternal grandmother stated the father has turned his life around. She is not persuaded that the mother is rehabilitated. She says it will take longer for the mother to rehabilitate, although she could not say how long that would be. She also said that the mother has not had the responsibility of looking after L on her own, in other words her ability to care for her had not been tested.
50The paternal grandmother does not trust the mother to care for L. She genuinely fears for L's welfare in the care of the mother, perhaps understandably having regard to what they went through in 2014. I accept the paternal grandmother's evidence that L's safety is her primary concern.
Ms Causey
51[Ms Causey] is the father's sister and like the paternal grandmother she minimised any negative behaviour on the part of the father. For example she spoke of the father and the mother on holiday in Country B and spoke of the mother's difficulties with an eating disorder and binge drinking, but said the father had "zero" issues.
52Like the paternal grandmother, Ms Causey has seen the worst of the mother. Prior to that, they were good friends. I accept she too is concerned about the welfare of L.
53Ms Causey disapproved of the mother remaining in Sydney. She was sharp and abrupt in her replies in cross-examination. She was honest, but clearly supportive of the father and paternal grandmother.
Ms E
54[Ms E] is the paternal grandmother's sister. She has been involved in the care of L. She too was very supportive of the paternal grandmother.
55Ms E described some unusual behaviour on the part of L after a visit with her mother. She said that she talks about her ailments, becomes a little babyish, quiet, thoughtful, pensive and this behaviour lasts about a month.
Ms F
56[Ms F] is also the paternal grandmother's sister. She swore an affidavit but was not required for cross-examination. She spoke of the close-knit family of which L is a part and referred to many happy family occasions.
The father
57The father was a self-represented litigant. It was apparent from his affidavit that he had received assistance from the paternal grandmother in preparing it. She had a diary and provided him with an electronic copy of a draft affidavit which he amended while at work.
58As to L's current arrangements the father said she is with him on his time off. He finishes his work on Thursday morning after a night shift and takes her on Friday until the following Wednesday every third week. He said that has been the arrangement this year.
59The father was not particularly cooperative or forthcoming in cross‑examination. When asked about Ms H's report he said he did not recall what was in the first report which he had read a long time before. His recollection was vague in respect of various matters particularly his own criminal activity and gambling. However, he specifically remembered that he had not used illegal drugs since he was in Country A in 2010 when he said he took a little cocaine on three occasions.
60The father was ordered to undergo random drug urinalysis but he has not complied with that order. He said it was ridiculous as he does not take drugs.
61The father spoke of finding employment in Perth, although there was nothing definite.
The mother
62The mother was a self-represented litigant until trial when she was represented by counsel. Her case was thoroughly and well prepared.
63In evidence the mother tended to blame others for her alcohol problems in 2014. She said she was not alcohol dependent when she arrived in Perth in 2013, but that is contrary to Ms Causey's evidence who said shortly after the mother's arrival she purchased vodka and became intoxicated.
64The mother was not convincing when she spoke of her behaviour in 2014. She minimised her behaviour. It is likely she cannot remember much of it. As to the mother's conduct and the events of 2014 when the mother's alcohol addiction was at its worst, I prefer and accept the evidence of the paternal grandmother and Ms Causey. Ms H confirmed the mother's memory of events in 2014 was not strong.
65The mother said she is pleased the father has turned his life around and her only concern was that the father had not undertaken the drug tests as ordered.
66The mother's position is that if it is ordered that L live in Perth she will not move to Perth. She has considered doing so.
67She has discussed the matter extensively with Mr A and they intend to remain in New South Wales where the mother has support from fellow workers, Mr A's family and friends. The mother stressed this was her decision. Ms H reported that a move to Perth would place the mother's recovery at risk.
68The mother described L as a smart child who loves challenges. She acknowledged that L's school reports were favourable, indicating that the paternal grandmother had looked after L well. The mother gave her credit for that.
69In answer to questions by the father, the mother acknowledged she drank to excess in Country A. She denied she had told L that she would be moving to New South Wales, although they had talked about wanting to be together.
Dr G
70[Dr G] is the mother's general practitioner. She provided a report dated 1 February 2017 and gave oral evidence by telephone.
71In her report Dr G stated that the mother first attended [the medical centre] in January 2015. Since then she has had detox at [the detox centre], counselling and completed rehabilitation with [the rehabilitation centre]. Dr G reported "Since then she has not presented with any alcohol or drug related issues and has had ‑ ve blood alcohol levels". Random urine drug and alcohol screens are done and none have been positive for alcohol.
72Since the date of Dr G's report the mother has attended upon her only for counselling, prescriptions and pathology. Her last prescription was in April 2017 which was for antidepressants.
Ms C McCaig
73[Ms C McCaig] is the mother's sister and she gave evidence by telephone from Country A.
74She recalled the mother's alcoholism being a cause for concern at the time of the mother's 30th birthday and in 2014.
75Ms C McCaig was supportive of the mother.
Mr McCaig
76[Mr McCaig] is the mother's father. He also gave evidence by telephone from Country A. He too was supportive of the mother.
Mr A
77Mr A is a [dental hygienist]. He is working on a degree in [dentistry]. He and the mother are saving for a deposit for a home. He said he would be reluctant to move to Perth as the mother has a support network in Sydney, which he described as a really good support base of which he is part. They had discussed a move to Perth and both had made the decision not to move. Mr A described the outings for L in New South Wales. He said he has comforted L when she has become upset when leaving Sydney.
Mrs A
78[Mrs A] is Mr A's mother. Currently her son and the mother live in their home, although in the future it is intended that they get their own. I consider Mrs A gave honest evidence. She was supportive of the mother. She said going through the paperwork and the court proceedings has made her son and the mother stronger as a couple.
Mr A (senior)
79[Mr A (senior)] is Mr A's father. He is [a quantity surveyor]. He too was supportive of the mother. He was asked about any disagreements he had had with her. Any disagreements they may have had were not of any significance. He had no concerns at all about the mother and in his view it was inadvisable for her to move to Perth.
Ms H
80Ms H is a psychologist and psychotherapist in private practice.
81At the time of her first report Ms H was of the view that it was not in L's best interests to relocate to New South Wales given the high likelihood of relapse and the nature of the mother's non-functioning alcoholism when she was unwell. Ms H acknowledged the mother's progress, but recommended that L continue living with the paternal grandmother and spend time with the father and also with the mother in school holidays in Sydney or Perth. A second option was that if the mother was prepared to move to Perth, L could be returned to her care from 2017 and spend time with the father and paternal grandmother.
82At that time while acknowledging the mother was L's primary attachment figure Ms H reported that L remained at risk by reason of the possibility of the mother suffering a relapse.
83Ms H reported that at the time of her first report the mother had been sober for 10 months and research indicated the rate of relapse in the first 12 months of recovery was between 80 and 90%. This reduced to 50% after the second year of sobriety and the rate drops right down after five years of sobriety.
84At the time of her second report Ms H had the benefit of a letter from the mother's psychologist [Ms I] dated 8 September 2017, which referred in favourable terms to the mother's determination to move forward in terms of health and other matters and the progress she had made.
85Ms H reported that the mother had made considerable ground in her treatment and recovery. She set out in her report the steps the mother had taken.
86Ms H reported that the mother had demonstrated a successful recovery and as she had been sober for two years the likelihood of a relapse decreased. Her professional support systems were extensive and Ms H recommended that if the court agreed with her risk assessment, L should be returned to the mother's care in Sydney at the completion of the 2017 school year. Ms H made other helpful recommendations which I have considered carefully.
87Ms H reported that if the court did not agree with her assessment of risk, a second option would be that the mother move to Perth for a period of 12 months and L be returned to her care. In respect of this option, Ms H reported that it placed the mother's recovery at risk.
88Ms H was referred to paragraph 45 of her first report wherein she stated the mother feels she has addressed the sexual abuse with counsellors in her past and she can talk about this quite openly without emotion. In stating this Ms H confirmed she was referring to the childhood abuse.
89Ms H went on to say the mother's recovery is the best she has seen in her experience. The mother could not do more.
90When asked about recovery Ms H said she did not think there is ever a 100% recovery. This is consistent with what the mother said in evidence namely that a person in recovery will always be in recovery.
91Ms H was asked about the mother providing for L and obtaining employment. Ms H said a job and the care of L would be another protective factor for the mother.
92Ms H's second report confirmed the mother had good insight into her alcoholism, and is aware of her triggers and early warning signs of relapse.
93There is no communication between the mother and father. Ms H said she did not believe the lack of contact between them is coming from the mother.
94Ms H was an impressive witness. She gave her evidence clearly and concisely. Her reports were comprehensive and well-reasoned. She was firm in her conclusions and recommendations. Ms H's evidence was of considerable assistance to me.
THE LEGAL PRINCIPLES
95These proceedings are determined under Part VII of the Family Law Act1975 (Cth) ("the Act"). In reaching my decision I will be guided by the objects of that Part and the principles underlying those objects.
96Section 60B sets out the objects as follows:
(1)The objects of this Part are to ensure that the best interests of children 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 the care, welfare and development of their children.
97In deciding whether to make a particular parenting order, s 60CA directs me to regard the best interests of the child as the paramount consideration. Section 60CC sets out how I determine what is in a child's best interests. I must consider the matters set out in subsections (2) and (3), being the primary considerations and the additional considerations respectively.
98Section 60CC(2) sets out the primary considerations which are the benefit to the child of having a meaningful relationship with both of the child's parents, and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
99Section 60CC(2A) provides that in applying the above considerations, I am to give greater weight to the need to protect the child from harm.
Parental responsibility
100Pursuant to s 61DA of the Act, when making a parenting order in relation to a child, the court must apply a presumption that it is in the child's best interests for the child's parents to have equal shared parental responsibility for the child.
101Equal shared parental responsibility imposes an obligation upon them to consult as to major long-term issues regarding the child and to make a genuine effort to come to a joint decision about such an issue.
102The presumption 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.
103The father seeks an order that the parties have equal shared parental responsibility for L. The mother seeks an order that she have sole parental responsibility for her.
Primary Considerations
the benefit to the child of having a meaningful relationship with both of the child's parents
104L has a meaningful relationship with both of her parents and it is to her benefit that it continues.
105Although this consideration only applies to a child's parents, I find it is also to L's benefit to have a meaningful relationship with the paternal grandmother.
the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence
106It is necessary to determine whether L is at risk of harm in the care of the mother. It is not suggested that she is at risk of harm in the care of either the father or the paternal grandmother.
107The position of the father and the paternal grandmother is that the mother remains a risk to L. They are not persuaded that she has been rehabilitated. They say her period of sobriety has not been long enough and she has not been able to stand on her own two feet and live independently without the extensive support she receives in Sydney. They are not convinced that important matters relating to her mental health and issues arising from her past have been addressed.
108The mother moved to Sydney for rehabilitation in early 2015. She completed residential rehabilitation between 13 April and 3 July 2015 in New South Wales at the rehabilitation centre. After that she attended upon Ms I to whom she was referred by her general practitioner. The mother continued to see Ms I until mid-2016 when she was told there was no further need to do so.
109 After the mother completed residential rehabilitation in July 2015 she engaged with [a substance abuse outreach organisation] which she described as her main source of support. She received weekly counselling. She has successfully completed four 12-session treatment episodes.
110The mother completed a facilitator course in November 2016 and she now facilitates and co-facilitates courses for groups of people recovering from addiction. She explained that her own recovery was based on the program and she now facilitates meetings for others.
111The mother works at [the clinic] where her role is to speak to girls who are in the process of recovery. Once a month she facilitates a mother and baby group at the clinic.
112The mother takes part in a hospital speaker program working with inpatients.
113The mother said her work helping others reinforces her recovery and she can see how far she has come.
114She also works in retail up to four to five days a week.
115In answer to questions by Mr Dawkins the mother was asked what part of her recovery as an alcoholic she was at. The mother's answer was that she was recovered "to the point that [she] would not even take a cough drop if it has alcohol in it". The mother considers herself 100% safe. The mother said:
Anybody in recovery will always be in recovery … I always believe it is part of me, I don't know if you can actually put it in finite terms that there is a definite end to anybody's recovery, that just doesn't make sense to me. I am living recovery and am in recovery, that's the way I view it.
116The mother said there are no triggers at the moment and she has educated herself in that respect. In the past she drank to suppress her emotions and now she has the coping skills to manage this. These proceedings have been stressful, but she has had support from Mr A, his family, friends and at work. If there is a stress or a trigger, she has counselling once a week.
117Ms H said dishonesty goes with an alcoholic and it was the mother who said that one of her early warning signs was being dishonest to herself and to others. Ms H said her awareness around this was impressive.
118Although the mother has spent significant periods of time in Perth with L, Perth remains a trigger.
119In cross-examination of Ms H, the mother's counsel put a number of proposed safeguards to her and I have incorporated these in my proposed orders below. They included the mother giving authorities to others to provide information regarding her circumstances.
120I consider the mother has demonstrated considerable insight into her own difficulties. With help and support she has addressed those difficulties and I was impressed by her acknowledgement that she will always remain in recovery. To resume the care of L has been a strong motivation which has sustained her recovery. Until trial she was a self-represented litigant and has maintained her recovery notwithstanding the stress of ongoing court proceedings.
121The mother has extensive support in Sydney including from Mr A and his family. I accept she would not move to Perth. It would jeopardise her recovery to do so. I accept the mother's evidence that she has educated herself as to triggers.
122The report from Ms I indicates that contrary to the paternal family's belief the mother's past issues have been addressed in counselling.
123I place weight on the evidence of Ms H in particular her evidence as to the mother's progress in her treatment and recovery as set out at paragraphs 33 to 46 of her second report.
124In terms of a risk assessment, Ms H reported:
67At this stage I cannot see that the mother can do any more to support her treatment and recovery. If all of the above plans are implemented with regards to support for [L] and visibility in the community I place the current risk of [L] with her mother in [Sydney] at a 7/10.
…
68As outlined above [Ms McCaig] has demonstrated a successful recovery to date and given she has reportedly now been sober for two years the likelihood of relapse decreases.
69The professional support systems in place for [Ms McCaig] are extensive.
125I find that L is not at risk of harm in the care of the mother.
Additional Considerations
any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views
126The paternal grandmother was questioned about aspects of Ms H's report. She said L wants to be with the mother but in Western Australia. Contrary to the terms of Ms H's report she would not agree that L wants to be with the mother in New South Wales.
127Ms H reported as to L's views. L's wish was that all of her family could live in one place so she could see everyone equally. L discussed various scenarios involving her living arrangements with Ms H and was able to discuss pros and cons for each.
128Ms H reported:
15[L] reported that since the last time we met she has been to [Sydney] several times and feels safe and loved by all of her mother's established support networks. Her relationship with [Mr A] has developed and she feels safe and loved by him and his parents who have become her good friends.
16[L] reported that the prospect of moving to [Sydney] excites her, she is not worried about leaving her friends as she can make new ones and she will see her dad and grandmother on the holidays. She will feel sad about leaving her grandmother but will talk to her regularly on the phone.
129Ms H described L as a confident, open and expressive child. She said in cross‑examination L maintained from "day dot" that she misses her mother.
130In response to questions put to her in cross-examination by the mother's counsel Ms H accepted that L's views are related to the amount of time she has had with the mother. She accepted that another possibility is that her views were genuine, and that the court can be more confident about her views because she has been consistent, she is open and chatty and has not been influenced. Ms H said L was comfortable discussing matters with her. They properly explored the options in particular the possibility of missing family. Referring to her paternal family L said she would call them lots during the week and see them in holidays.
131I accept Ms H's evidence as independent evidence of L's views.
the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child)
132L has a close and loving relationship with both of her parents. She also has a close and loving relationship with the paternal grandmother who has cared for her since 2014. L has a close relationship with members of the paternal family and a good relationship with the father's wife. L enjoys a close relationship with Mr A and also members of his family. She is aware she has a large family network.
133In terms of L's attachments, Ms H said the mother is L's primary attachment figure and the other important attachment figure is the paternal grandmother. L is attached to the father, but does not identify him as a primary attachment figure, although he is important in her life and she would miss him.
the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child
134In 2014 while ill, the mother did not participate effectively in L's upbringing. Her departure from Perth was deemed necessary for her recovery. Since mid-2015 the mother has spent time and communicated with L in Perth and in Sydney to the extent she has been able. Most of the long-term decisions for L have been made by the paternal grandmother who was caring for her. To an extent, the father has participated in decisions about long-term issues concerning L and spent time and communicated with her. He works fly-in/fly-out and has entered a new relationship. Ms H reported that he had done little to make the full-time care of L his priority.
135L's care has been primarily given by the paternal grandmother. The father has not paid child support. The paternal grandmother has not sought child support while L was in her care. The father has made payments in kind to the paternal grandmother.
136Similarly the mother has not paid child support. Both parents have purchased items for L when she was in their respective care.
the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
137In the event that L moves to Sydney she will be separated from the paternal grandmother, the father and her paternal relatives. She will leave her school and her friends. It appears this is an outcome which L desires and therefore she is likely to adapt to it readily. Although this will involve a disruption in L's life Ms H reports the best time for L to relocate is in the early school age years.
138If L does not move to Sydney her circumstances will remain the same in that she will continue to be cared for by the paternal grandmother and spend time with the father, perhaps in increasing amounts if he obtains employment in Perth. She will spend time with the mother in either Perth or Sydney during school holidays. This is likely to have an effect upon L because it is not the outcome she desires and having regard to the strength of her wishes she may be disappointed. Ms H reported that at the time of her first report there was a risk to L emotionally if she was told she could not return to her mother's care. At that time she was fretting at being away from her primary attachment figure and questioning why it was happening, which Ms H reported could lead to a strained relationship between her and her grandmother. At that time Ms H anticipated if L moved to Sydney she would have some fairly normal adjustment issues such as anxiety starting a new school and missing her grandmother, but overall she would adapt well and quickly. In evidence, Ms H said L's motivation and interest is with her mother and she would be impacted either way but being denied the move to her mother will cause more distress than being denied her grandmother.
the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis
139There is practical difficulty and expense which arises from the distance and the cost of travel. The father said if L moves to New South Wales he would pay for one trip a year, but he could not afford to meet the cost of any further trips. There are financial constraints for all parties. The parties are in employment and they will have to continue meeting the travel costs as they have done for the past few years. There is no difficulty with L communicating with the parent with whom she is not living. Electronic communication can be arranged with ease.
the capacity of:
(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
140The capacity of the paternal grandmother and the father was not really at issue. Although the father's commitment to L was questioned I am satisfied that both have the capacity to provide for her needs on all levels. It is to the credit of all parties that L is making good progress and enjoys a comfortable and loving relationship with all persons involved in her care. That indicates that all parties have provided well for her emotional needs.
141The only issue to be considered here is the mother's capacity to provide for L's needs. I have dealt with this when considering whether the mother's care of L poses a risk to her and I have found that it does not. The mother has the support of Mr A. They hope to obtain their own accommodation in the near future and the mother has in mind schools for L which would be close to her home.
the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant
142L is seven years of age. Ms H described her as a confident, open and expressive child. She is making excellent progress at school.
if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right
143This consideration is not relevant.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
144This consideration has been covered in discussing matters above. Although this consideration refers only to parents, the paternal grandmother's involvement is also relevant. At times when neither of L's parents cared for her, nor was able to do so, the paternal grandmother did so, selflessly putting L's needs first.
145Ms H said the mother found it difficult to speak negatively of the paternal family and her attitude of being very gracious towards the paternal grandmother was maintained through the second assessment.
146I am satisfied that none of the parties has attempted to undermine L's relationship with any of the other parties and in that respect all have behaved appropriately.
147The father is in receipt of a gross income of $111,000 per annum. He does not provide child support to the paternal grandmother, although he makes the repayments for a motor vehicle for her and buys clothes and food. He said he does not know what it costs the paternal grandmother to keep L and they have had no discussions about child support. He says he cannot afford travel costs to Sydney.
148The mother has not paid child support for L. She offered to pay the paternal grandmother the assessed amount of $7.82 per week but said the paternal grandmother would not accept the money. The mother is saving for L's education.
149The father does not communicate with the mother. He has not done so for some time and does not have any immediate intention to do so.
150I am not convinced the father's involvement with L has been significant. He was content to leave her care to the paternal grandmother. He has spent time with her which both have enjoyed, but ultimately the responsibility for L's care has rested with the paternal grandmother.
any family violence involving the child or a member of the child's family
151There is no family violence involving L or a member of her family.
if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter
152There is no family violence order in effect.
whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
153Ms H proposed in her second report as her third option that all of the arrangements remain as they are and that a review be conducted within 12 months to re‑evaluate the situation. This is on the basis that the second option is not applicable as the mother would not return to Perth to live. The third option is pressed by the paternal grandmother and supported by the father.
154I am not persuaded that such an outcome is in L's best interests. I accept Ms H's risk assessment of the mother. I am mindful of L's strong desire to live with her mother who she sees as her primary attachment figure and I do not consider it to be in her best interests to postpone a final outcome. I consider it preferable that I make final orders and that L has certainty in her living arrangements going forward.
any other fact or circumstance that the court thinks is relevant
155Ms H said L will need fortnightly sessions with a psychologist whether she goes to Sydney or whether she does not. If she goes it will be to deal with adjustment issues and if she does not, it will be to deal to with the fact that her wishes have not been given effect to. I intend to so order.
156The father mentioned in evidence that he may consider moving to [Victoria]. There were no definite plans in this respect.
157In considering protective measures to be taken, counsel for the mother informed the Court that Mr A and his family are prepared to be the subject of an order that in the event of any relapse by the mother they would inform Mr Dawkins or the paternal grandmother. I have taken this into account.
158As to the possibly of travelling overseas, the mother deposed she will be eligible to apply for Australian citizenship in November 2017. She is doing a [Master's Degree in Sociology]. She would like to take L to Country A to visit family while she is a child, but she would not permanently remove her from Australia.
CONCLUSION
159Having considered the evidence in the context of the primary and additional considerations, I have come to the conclusions below.
Parental responsibility
160The presumption that it is in L's best interests that her parents have equal shared parental responsibility for her is rebutted in the circumstances of this case. The mother and the father have not communicated for about two years. The father did not indicate that he was willing to communicate and Ms H said that the lack of communication was of the father's making. As discussed below, I intend to make an order that L live with the mother and I consider it to be in her best interests that the parent with whom she lives primarily should make decisions about long-term issues involving her care. It is however appropriate that the mother keep the father and the paternal grandmother informed of any decisions made.
The child's living arrangements
161Having weighed and balanced my findings as to the primary and additional considerations I have concluded that L should live with the mother in Sydney. I accept she has good reasons for not moving to Perth. L will be able to maintain a meaningful relationship with both of her parents and also with the paternal grandmother as those relationships are already well‑developed. I have found she is not at risk of the harm referred to in the second of the primary considerations.
162L has a close and loving relationship with both of her parents and her paternal grandmother. She is happy in the care of each, but she strongly desires to live with her mother who is her primary attachment. Pivotal in the circumstances of this case is my finding that L is not at risk of harm in the care of the mother, who is able to provide for her needs. The mother has the committed support of Mr A and his family. She has her life on track, which in turn enables her to provide well for L. Such an order will provide certainty in L's arrangements. L will continue to spend significant periods of time with her father and the paternal grandmother during school holidays and be able to maintain her close relationship with both of them in that way. She will also be able to have electronic communication with them.
163This is an outcome recommended by Ms H and supported by Mr Dawkins and I am satisfied an order that L lives with the mother is one which is in her best interests.
Time spent
164It would be in the best interests of L to spend time with the father and the paternal grandmother in Perth and elsewhere. I note from the orders sought by the paternal grandmother that if the mother lives outside the Perth metropolitan area, including interstate, then she proposes that L live with her. As there is no dispute between the father and the paternal grandmother in relation to L's arrangements I assume that they would be able to agree to share L's time between them in a way that also takes into account the father's roster. My orders will therefore provide for L to spend time with both the paternal grandmother and the father during school holidays and at other times should they visit her in New South Wales.
165I consider it would be in L's best interests to spend one half of each school holiday with the father and the paternal grandmother. This will enable L to maintain her relationship with her paternal family, but at the same time have the opportunity to spend holiday time with the mother and her new friends and family in New South Wales.
166In her minute the mother proposes specific dates for the years 2018 to 2020 inclusive. As those dates broadly appear to be one half of the New South Wales school holidays, I shall adopt those dates in my orders. They provide for L to spend Christmas with her mother and then with her father and paternal grandmother in alternate years.
167L's new living arrangements will take effect at the conclusion of Term 4 in 2017. At the end of that term L should spend time with the father and paternal grandmother until she travels to Country A with the mother between 18 December 2017 and 16 January 2018. She would then have an opportunity to become accustomed to her new surroundings in New South Wales before commencing school at the start of the 2018 academic year. I therefore consider the dates proposed by the mother for the 2017 holidays at the end of Term 4 to be appropriate.
Other matters
168In considering the matters referred to below I have born in mind that L's best interests is the paramount consideration. The mother seeks to travel to Country A with L. I do not propose to restrict the mother in this respect. The mother stated it was not her intention to live in Country A permanently and I agree with her view it would be beneficial to L to have an opportunity to spend time with relatives in Country A. L was born in Country A and should have the opportunity to enjoy her Country A heritage and meet her maternal family.
169In the orders sought by the mother she proposes that all parties be able to travel overseas with L, however she confines this to a Hague Convention country. The father recently married his wife in Country D. It may be that he will wish to travel with L to Country D. It may be necessary for me to hear from the parties in this respect. There was no suggestion that the father intends to move to Country D and I think it highly unlikely he would retain L there, particularly having regard to her close relationship with the paternal grandmother.
170I consider that both parties should be responsible for meeting the costs of L's travel. The mother will be responsible for paying for one half of that travel and the paternal family, that is the father and/or grandmother will be responsible for payment of the other half. In the event that a party travels with L, that party will meet his or her own airfare.
171I intend to make orders which include the protective measures proposed by the mother. It should not be assumed that in doing so I have not satisfied myself as to risk, but I consider such protections are appropriate in all the circumstances of the case.
172Those protective measures include the mother authorising those treating her, the [Mr A's family] and L's school to provide information concerning the personal circumstances of the mother and L to the ICL. I assume Mr Dawkins would seek to be discharged in these proceedings. I further assume the mother would give authority to those persons to provide information to the paternal grandmother, rather than the father. I say this because it is the paternal grandmother who communicates with the mother and I am mindful that the father may be absent from Perth from time to time in accordance with his roster. It therefore seems that the appropriate person to be informed of important matters should be the paternal grandmother.
THE PROPOSED ORDERS
173Subject to hearing from the father and counsel the orders I propose to make are as follows:
1All previous parenting orders be discharged.
Parental responsibility
2The mother, [Ms McCaig] have sole parental responsibility for the child, born [in] 2010.
3The mother shall promptly inform the father, [Mr Causey] and the paternal grandmother, [Mrs Causey] of any decision made by her concerning major long-term issues for the child.
The child's living arrangements
4The child shall live with the mother with effect from 1 January 2018
5The mother have permission to relocate the child to [Sydney, New South Wales].
Spend time arrangements
6The child shall spend time with the mother from 17 November to 21 November 2017 and from 24 November to 28 November 2017, with handover to take place at the conclusion and commencement of school.
7The child shall spend time with the father and the paternal grandmother as follows:
(a) in the holidays at the end of Term 4 in 2017 from the conclusion of the school term until 1 January 2018;
(b) in 2018:
(i) from 31 March to 8 April;
(ii) from 30 June to 8 July;
(iii) from 22 September to 30 September; and
(iv) from 2 January to 20 January 2019;
(c) in 2019:
(i) from 6 April to 14 April;
(ii) from 29 June to 7 July;
(iii) from 21 September to 29 September; and
(iv) from 15 December 2019 to 6 January 2020;
(d) in 2020:
(i) from 4 April to 12 April;
(ii) from 27 June to 5 July;
(iii) from 19 September to 27 September; and
(iv) from 2 January to 20 January 2021;
(e) in the school holidays from 2021 and thereafter for one half of those school holidays as may be agreed between the parties and failing agreement, the first half at the end of Terms 1, 2 and 3 and alternating the first and second halves at the end of Term 4; and
(f) in the event the father or the paternal grandmother travels to [Sydney] the child shall spend time with them as may be agreed between the parties.
Travel arrangements
8Unless otherwise agreed, at the commencement of the child's time with the father and/or the paternal grandmother, the father and/or the paternal grandmother shall accompany the child on a flight from [Sydney] to Perth and the father and/or the paternal grandmother shall be responsible for booking the flights and costs associated with such flights.
9Unless otherwise agreed, at the commencement of the child’s time with the mother, the mother shall accompany the child on a flight from Perth to [Sydney] and shall be responsible for booking the flights and the costs associated with such flights.
10No less than 7 days prior to the intended holiday periods, the parties shall provide each other with the confirmation of booking, payment and confirmed itinerary.
11Upon the child attaining the age of 10 years, and subject to the child being comfortable with such, the child be permitted to travel as an unaccompanied minor.
Variations
12The mother, the father and the paternal grandmother shall be at liberty to have the child live or spend time with each of them other than as set out in these orders and are at liberty to vary these orders, provided such variations are agreed in writing.
Telephone/electronic communication
13The child shall have telephone or electronic communication with a parent or the paternal grandmother with whom she is not living on Mondays, Wednesdays and Fridays each week.
14The parent seeking the communication with the child shall initiate the call between 6.00 pm and 6.30 pm.
15The parties shall permit the child to telephone a parent or the paternal grandmother in accordance with her wishes.
Overseas travel
16A party may remove the child from Australia for the purpose of a holiday provided that:
(a) the proposed holiday shall not coincide with the time the child is to spend with the non-travelling party, unless the non-travelling party agrees in writing;
(b) the travelling party shall provide to the other party no less than 30 days' notice in writing of the proposed holiday, including in that notice the destination of travel and departure and return dates;
(c) not less than 7 days prior to the departure date the travelling parent shall provide the other parent with a full itinerary of the holiday in writing, including accommodation details and address, contact telephone numbers for the duration of the holiday and return airline tickets; and
(d) the mother shall hold the child's passport and provide it to the travelling party not less than 7 days prior to the proposed travel, and the passport shall be returned to the mother within 7 days of the child's return.
Communication
17The parties shall keep each other informed of their primary place of residence, landline and telephone numbers and their current email addresses and promptly notify the other parties in writing in advance of any change thereto.
18The parties shall keep each other informed of the names and addresses of any treating medical or other allied health practitioners who treat the child and authorise those practitioners to provide the other parties with information that they are lawfully able to provide about the child.
19The parties shall inform each other as soon as reasonably practicable of any significant medical condition, significant health issue or significant illness suffered by the child while in their respective care and authorise any treating medical practitioner to release the child's medical information to the other parties.
20The mother shall do all acts and sign all documents necessary to authorise the school attended by the child to provide the father and the paternal grandmother with information concerning the child's schooling, including but not limited to copies of any school reports, school photos, access to any portfolio of work, school circulars or notices concerning functions, parent/teacher nights, school carnival and other school functions or events to which parents are invited, as soon as practicable after they are issued.
21The parties be at liberty to provide a copy of these orders to the school attended by the child.
22The mother shall authorise the following person to forthwith notify the paternal grandmother or the father in the event she suffers a relapse of her alcohol addiction, namely:
(a) [Mr A];
(b) [Mrs A];
(c) [Mr A (senior)]; and
(d) the mother's treating psychologist, therapist or counsellor.
The mother
23The mother shall comply with the directions of her treating practitioners.
24The mother shall undergo random drug urinalysis testing for alcohol, for a period of 12 months with photographic identification at the request of the paternal grandmother, upon the following conditions:
(a) the tests be undertaken within 24 hours of a SMS text message request being made by the paternal grandmother;
(b) the number of requests shall not exceed one per month;
(c) the party undergoing the test forthwith authorise the testing centre to release a copy of the test results to the paternal grandmother as soon as they become available; and
(d) the costs of the tests be borne by the mother.
Counselling
25The mother shall arrange for the child to attend upon a psychologist fortnightly or as recommended by the psychologist.
26The Mother have permission to provide to the child's treating psychologist the Single Expert's reports dated 24 July 2016 and 12 September 2017 and these Reasons.
Procedural
27The proceedings otherwise be dismissed.
28The Independent Children’s Lawyer be discharged.
29All documents produced by named persons pursuant to subpoena be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from this order.
30In relation to material tendered as an exhibit into evidence in these proceedings:
(a) all parties must collect the exhibits tendered by them ("their exhibits"), from the chambers of Justice Duncanson, at least 28 days, and no later than 42 days, from today's date;
(b) all parties must contact the chambers of Justice Duncanson to arrange the collection of their exhibits; and
(c) in default of compliance with subparagraph (a), all material tendered as an exhibit, save and except for material produced pursuant to subpoena, will be destroyed by the court without notice to the parties.
31In the event of an appeal being lodged prior to the expiration period of 42 days, orders 29 and 30 above do not apply.
I certify that the preceding [173] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
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